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R.    W,  'P.KCKHAM 

'■.-•  .•;•.  s--  S-.  -. 


CYCLOPEDIA     OF      LAW 


HOW  TO  STUDY  LAW 


CONTAINING 

PRACTICAL    SUGGESTIONS    TO    STUDENTS,     BUSINESS 

MEN,  WOMEN   AND   Ahh  OTHERS   WHO   DESIRE 

A  KNOWLEDGE   OF  THE   ELEMENTARY 

PRINCIPLES  OF   LAW,  INCLUDING 

A    CLEAR     PRESENTATION 

OF  THE  ELEMENTS  OF 

Blackstone's   Commentaries 


VOL.     I 


EDITOR  IN  CHIEF 

Hon.  Charles  E.  Chadman,  LL.B.,  LL.M.,  LL.D. 

Assisted  By 
A  Corps  of  Legal  Experts 


Publishers 

AMERICAN   SCHOOL   OF   LAW 

Chicago,  U.  S.  A. 


T 


\       0    r^     f 
COPTEIGHT,  1906 

By  Frederick  J.  Drake  &  Co. 
Chicago 


0102 


-4 


"Dr- 


AUTHORITIES  CONSULTED. 

E.  S.  ABBOTT, 
Municipal  Corporations. 

W.  A.  ALDERSON, 
Judicial  "Writs  and  Processes. 

W.  C.  ANDERSON, 

Law  Dictionary. 

W.  F.  BAILEY, 
Personal  Injuries. 

F.  H.  BACON, 

Life  Insurance. 

J.  B.  BISHOP, 
Statutory  Crimes. 

G.  T.  BISPHAM, 
Principles  of  Equity. 

M.  M.  BIGELOW, 
Life  and  Accident  Insurance. 

E.  C.  BENEDICT, 
American  Admiralty. 

C.  F.  BEACH, 
Modern  Equity  Practice. 


AUtHOKITIES  CONSULTED 

E.  E.  BALLARD, 
Real  Property  Law. 

S.  E.  BALDWIN, 
American  Railroad  Law. 

W.  E.  BENJAMIN, 
Bills,  Notes  and  Checks. 

W.  BLICKENSDERFER, 
Students '  Review. 

J.  H.  BREWSTER, 
Conveyancing. 

W.  BLACKSTONE, 

Commentaries. 

G.  BLISS, 
Life  Insurance. 

H.  C.  BLACK, 
Constitutional  Problems. 

C.  L.  BATES, 

Federal  Equity  Procedure. 

W.  H.  BROWNE, 
Law  of  Trade  Marks. 

H.  F.  BUSWELL, 

Personal  Injuries. 

F.  M.  BURDICK, 

Partnership. 


AUTHORITIES  CONSULTED 

A.  M.  BURRILL, 

Assignments. 

J.  BOUVIER, 

Law  Dictionary. 

I.  BROWNE, 

Domestic  Relations. 

S.  V.  CLEVENGER, 

Spinal  Concussion. 

G.  A.  CLEMENT, 
Fire  Insurance. 

J.  C.  CHITTY, 

Contracts. 

C.  D.  DRAKE. 

Attachment  Suits. 

G.  B.  DAVIS, 
Military  Law. 

M.  E.  DUNLAP, 
Elementary  Law. 

E.  S.  DRONE, 
Copyright  Law. 

R.  T.  DEVLIN, 
Law  of  Deeds. 

C.  B.  ELLIOTT, 
Public  Corporation!. 


AUTHORITIES  CONSULTED 

F.  GIAQUE, 
Notary's  Manual. 

S.  GREENLEAF, 
Evidence. 

W.  E.  HAGAN, 

Disputed  Handwriting. 

A.  I\r.  HAMILTON, 
Medical  Jurisprudence. 

G.  E.  HARRIS, 
Damages  by  Corporations. 

J.  G.  IIAWLEY, 
Internatioual  Extradition. 

E.  W.  HUFFCUT, 

Negotiable  Instruments. 

J.  L.  HIGH, 
Injunctions. 

F.  N.  JUDSON, 
Interstate  Commerce. 

J.  A.  JOYCE, 
Damages. 

J.  D.   LAWSON, 

Contracts. 

J.  R.  LONG, 

Domestic  Relations. 


AUTHORITIES   CONSULTED 

S.   S.   MERRILL, 
Mandamus. 

J.  W.  MAY, 
Law  of  Crimes. 

G.  L.  PHILLIPS, 
Code  Pleading. 

R.  R.  PERRY, 

Common  Law  Pleading. 

J.  H.  PURDY, 
Private  Corporations. 

H.  E.   PAINE, 
Law  of  Elections. 

F.  POLLOCK, 
Contracts. 

J.  N.  POMEROY, 
Municipal  Law. 

J.   RAM, 

Legal  Judgments. 

J.  J.  REESE, 

Toxicology. 

W.  C.  ROBINSON, 

Elementary  Law. 

W.  H.  RAWLE, 
Covenants  for  Title. 


AUTHORITIES   CONSULTED 

W.  C.  RODGERS, 
Domestic  Relations. 

H.  D.  SEDGWICK, 
Law  of  Damages. 

J.  SCHOULER, 
Personal  Property. 

C.  H.  SCRIBNER, 
Dower. 

G.  SHARSWOOD, 
Law  of  Lectures. 

W.  L.   SNYDER, 
Mines  and  Mining. 

G.  H.  SMITH, 
Elements  of  the  Law. 

A.  A.  STEARNS, 
Suretyship. 

J.  F.  STEPHENS, 
Digest  of  Evidence. 

H.  TAYLOR, 

International  Law. 

C.  G.  TIEDEMAN, 
Real  Property. 

B.  M.  THOMPSON, 
Equity  Pleading. 


AUTHORITIES   CONSULTED 

H.  C.  UNDERBILL, 
Criminal  Evidence. 

G.  W.  WARVELLE, 

Abstracts  of  Title. 

W.  P.  WILLEY, 
Procedure  in  Pleadings. 

F.  WHARTON, 

Law  of  Negligence. 

W.  WINTHROP, 
Military  Law. 

T.  A.  WALKER, 

American  Law. 

J.  H.  WIGMORE, 
Examinations  in  Law. 

J.  G.  WOERNER, 
American  Guardianship. 


AUTHOR'S  PREFACE. 

"How  to  Study  Law"  is  a  question  of  import- 
ance to  an  ever  increasing  number  of  persons  who 
desire  a  practical  and  inexpensive  method  of 
fitting  themselves  for  the  legal  profession.  The 
same  question  is  also  suggesting  itself  to  persons 
who  are,  or  expect  to  be,  established  in  other 
callings,  who  w^ish  to  understand  their  privileges 
and  responsibilities  under  the  law,  and  the  legal 
ties  that  regulate  their  varied  business  and  social 
•  relations.  This  book — introducing  the  Cyclo- 
pedia of  Law — seeks  to  answer  this  question 
in  a  manner  at  once  practical  and  satisfactory  to 
students  in  every  sphere  and  condition  of  life. 
The  Series,  it  is  hoped,  will  aid  the  law  office 
student  and  the  law  school  student,  as  well  as 
that  great  class  of  persons  who  are  unable  to  have 
the  advantages  of  either  school  or  office  instruc- 
tion. 

The  time  has  arrived  in  America  in  which  a 
person  who  wishes  to  succeed  must  be  able  to 
think  as  well  as  act.  The  law  offers  a  large  and 
expanding  field  for  the  development  of  charac- 
ter and  personality,  and  a  knowledge  of  it  is  as 
beneficial  from  the  standpoint  of  a  liberal  educa- 
tion as  from  that  of  a  life  calling. 

Blackstone  claimed  for  his  lectures  that  they 
5 


were  "as  a  general  map  of  the  law,  marking  out 
the  shape  of  the  country,  its  connections  and 
boundaries,  its  greater  divisions  and  principal 
cities"  and  that  it  was  not  his  business  "to  de- 
scribe minutely  the  subordinate  limits,  or  to  fix 
the  longitude  and  latitude  of  every  inconsidera- 
ble hamlet."  He  believed  that  the  student's  at- 
tention should  be  engaged  "in  tracing  out  the 
originals,  and  as  it  were,  the  elements  of  the  law," 
and  cited  Justinian  to  the  effect  that  if  "the  ten- 
der understanding  of  the  student  be  loaded  at  the 
first  with  a  multitude  and  variety  of  matter,  it  will 
either  occasion  him  to  desert  his  studies  or  will 
carry  him  heavily  through  them,  with  much 
labor,  delay  and  despondence."  Intro.  Bl.  Com. 
p.  36. 

The  Cyclopedia  of  Law  aims  to  perform 
the  same  office  for  the  American  student  as  the 
Commentaries  did  for  the  English  student  of 
law.  It  will  be  the  fixed  and  general  principles 
of  law  and  practice  that  will  be  chiefly  dealt  with  ; 
and  these  will  be  laid  before  the  student  in  a  plain 
and  simplified  manner.  The  minute  provisions 
of  statutory  law  will  be  indicated  and  the  students 
prepared  for  their  interpretation  and  application. 
The  same  author  quoted  above  has  said  that  a 
plan  of  this  nature,  if  executed  with  care  and 
ability,  cannot  fail  of  administering  a  most  use- 
ful and  rational  entertainment  to  students  of  all 
ranks  and  professions,  and  that,  an  attention  not 
6 


greater  than  is  usually  bestowed  in  mastering  tlie 
rudiments  of  other  sciences,  or  in  pursuing  a 
favorite  recreation  or  exercise,  will  be  sufficient  to 
encompass  in  this  manner  the  principles  and 
grounds  of  the  law. 

U  Law  is  the  garnered  wisdom  of  ages  of  polit- 
ical development  and  the  true  conservator  of  civ- 
ilization. It  nominates  the  duties  of  the  citizen 
and  sanctifies  the  rights  of  the  individual.  These 
rights  and  duties  must  be  known  and  fulfilled  if 
our  nation  is  to  exist  for  any  extended  period  and 
answer  the  high  purposes  for  which  it  was  estab- 
lished. We  trust  that  the  method  herein  pre- 
sented of  encouraging  a  knowledge  of  the  laws 
and  institutions  of  our  advanced  civilization  will 
meet  with  the  approval  of  the  general  public,  and 
be  a  help  and  a  benefit  to  those  who  desire  this 
knowledge. 


CONTENTS. 

Page. 

Publisher's   Preface 3 

Author's  Preface S 

CHAPTER  I. 

The  Chief  Difficulty  of  the  Student ii 

Same  Subject— This  Difficulty  Avoided 12 

How  the  Law  Was  Studied  Prior  to  1765 I3 

Study  of  the  Law  Since  Blackstone's  Time 15 

Advantages  of  the  Cyclopedia  of  Law 16 

The  Necessity  of  Legal  Knowledge 17 

Benefits  of  Legal  Education 19 

What  Previous  Education  the  Law  Student  Should 

Have  21 

The  Time  Required  to  Learn  Law 28 

Should  All  the  Student's  Time  Be  Devoted  to  Study?  31 

The  Cost  of  a  Legal  Education 36 

At  What  Age  Should  the  Student  Take  Up  Law?..  39 

Women  Should  Study  Law. 41 

To  Those  Who  Desire  to  Use  the  Cyclopedia  of 

Law    43 

Same  Subject,  to  Teachers  and  College  Students 45 

Concerning  Clubs  of  Students 46 

CHAPTER  n. 

The  Term  Law  Defined 48 

^  ^  Analysis  of  Blackstone's  Definition  of  Law 48 

Comprehensive  Meaning  of  the  Word  Law 50 

Same  Subject,  a  Later  View 52 

What  Laws  We  Are  to  Consider 55 

Influence  of  the  Law  of  Nature 56 

Political  Organization  Precedes  Law 57 

8 


^ 


"    Development  of  the  Law 5° 

Political  Organizations  Described 6o 

Same  Subject,  a  People  Defined 6o 

Same  Subject,  a  State  Defined 6i 

Origin  of  States 63 

Kinds  of  Governments 63 

Same  Subject— Republican  Government 64 

What  Is  the  Best  Form  of  Government 6$ 

/^        ^  Sources  of  the  Law 68 ' 

^  Legislation,  or  Law-making 73 

y  Written  Laws 7Z 

y  The  Unwritten  Law 74 

y  Common  Law 74 

7<  Equity  or  Chancery  Law 76 

Depositories  of  the  Law 7^ 

yL  Codification  of  Laws 78 

Divisions  or  Branches  of  the  Law 80 

Public  International  Law 81 

Private  International  Law 81 

Constitutional  Law 82 

v^      Law  Pertaining  to  Persons 83 

-t-     Law  Pertaining  to  Property 83 

Law  Pertaining  to  Crimes 83 

The  Law  of  Procedure 84 

Legal  Ethics 84 

The  Interpretation  of  Laws 84 

Law  and  Popular  Influence 86 

Influence  of  the  American  Lawyer 87 

Subjects  Treated  in  the  Cyclopedia  of  Law 90 

Helps  to  Students Qi 

Questions  for  Students 97 


PART   II 

Author's  Introduction  to  the  Study  of  Blackstone. . .   103 
Nature  of  Laws,  Section  II.,  Introduction  to  Com- 
mentaries     ^^^ 

Section  III. ,  of  the  Laws  of   England 149 

Book  thi  First,  of  the  Rights  of  Persons 197 


HOW  TO  STUDY  LXVf, 

CHAPTER  I. 

General  Suggestions. 

Section  i.  THE  CHIEF  DIFFICULTY  OF 
THE  STUDENT.— Aside  from  the  general  dif- 
iiculties  of  time,  money,  and  previous  educational 
advantages,  the  student,  young  or  old,  in  the  office 
or  in  the  law  school,  who  is  earnestly  in  quest  of 
legal  knowledge,  finds  his  enthusiasm  checked 
and  his  ardor  cooled  by  discovering  that  there  is 
no  key  to  the  varied  stores  of  legal  lore  which 
exist,  and  which  he  is  only  too  eager  to  make  his 
own.  To  one  who  has  traversed  the  rough  road 
heretofore  followed  by  every  student  of  the  law, 
it  is  palpably  apparent  that  much  valuable  time 
is  lost,  and  the  keen  edge  of  the  student's  appetite 
for  the  science  unnecessarily  blunted  because  he 
is  left  to  delve  too  deeply,  uncomprehendingly,  in 
some  branch  of  the  law  before  he  has  taken  a 
general  and  elementary  view  of  the  entire  science. 

The  different  branches  of  the  law,  like  the  di- 
visions of  other  sciences,  are  correlated,  and  each 
branch  assists  the  student  in  the  comprehension 
of  every  other. 


12  HOW   TO   STUDY   LAW. 

Sec.  2.  THIS  DIFFICULTY  AVOIDED.— 
By  the  series  of  comprehensive  and  explanatory 
treatises  contemplated  by  the  Home  Law  School 
Series  the  student  will  be  enabled  to  take  up  in 
succession  the  various  branches  of  the  science, 
master  the  fundamentals  of  each,  and  then  be 
prepared  for  a  more  careful  and  exhaustive  study 
of  the  history  and  spirit  of  the  law  as  well  as  to 
reason  concerning  the  natural  foundations  of  jus- 
tice. The  divisions  whic'h  are  to  be  followed  were 
suggested  by  the  arrangement  of  subjects  made 
by  the  examiners  appointed  by  the  Supreme 
Court  of  Ohio  to  conduct  the  examination  of 
candidates  seeking  admission  to  the  bar.  The 
examination  covered  twenty  branches  and  these 
in  turn  exhausted  the  field  of  American  law.  It 
is  the  aim  of  the  author  of  this  series'  to  present 
one  or  more  of  these  branches  in  each  number  of 
the  Home  Law  School  Series.  These  books 
will  enable  any  person  to  study  law  with  satis- 
faction and  profit,  and  not  only  to  become  fa- 
miliar with  the  rights  and  duties  of  an  American 
citizen,  but  also,  if  desired,  te  pass  the  hardest 
possible  bar  examination  and  embark  with  credit 
and  adequate  preparation  in  the  legal  profession. 

A  general  summary  of  the  principles  of  law  as 
they  stand  to-day  is  sought  to  be  spread  out  be- 
fore the  student  in  an  interesting  way,  not  too 
learnedly,  not  too  carelessly,  for  the  lawyer  must 
never  be  careless,  and  in  the  study  of  the  law  we 
cannot  discard  a  certain  degree  of  technicality. 


HOW  TO   STUDY   LAW.  13 

We  take  no  credit  to  ourselves  in  recognizing  the 
need  of  the  student  in  this  regard;  one  would  not 
set  a  child  to  Learn  music  by  giving  him  the  in- 
spirations of  the  great  masters;  these  are  the  last 
stages  in  the  acquirement  of  the  art  and  must  be 
preceded  by  careful  but  simplified  teaching  in  the 
elements  of  music.  So  with  law,  its  fundamental 
tenets  must  be  grasped  by  the  student  before 
those  more  intricate  problems  will  be  clear  to 
him;  and  if  the  basis  of  his  legal  education  is  suf- 
ficiently broad  and  firm  there  is  no  limit  which  he 
may  not  reach,  and  no  problems  which  he  may 
not  solve.  If  we  can  but  lessen  the  labors  of  the 
student  at  the  outset,  and  give  him  such  a  view 
and  grounding  as  will  permit  him  from  the  in- 
ception to  perceive  the  order  and  spirit  of  the 
law,  and  thus  be  inspired  and  not  discouraged  we 
shall  be  more  than  compensated  for  our  under- 
taking. 

Sec.  3.  HOW  THE  LAW  WAS  STUDIED 
PRIOR  TO  1765. — That  the  student  may  appre- 
ciate what  the  Home  Law  School  Series  has  un- 
dertaken to  do  for  him  w^e  restate  here  Lord 
Qiief  Justice  Reeve's  direction  to  those  about  to 
begin  the  study  of  legal  science.  He  said:  "Read 
Wood's  Institutes  cursorily,  and  for  an  explana- 
tion of  the  same,  Jacob's  Law  Dictionary.  Next 
strike  out  what  lights  you  can  from  Bohun's  In- 
stitutio  Legalis,  and  Jacob's  Practising  Attor- 
ney's Companion,  and  the  like,  helping  yourself 
by  indexes.    Then  read  and  consider  Littleton's 


U  HOW  TO  STUDY   LAW. 

Tenures  without  notes,  and  abridge  it.  Then 
venture  upon  Coke's  Commentaries.  After  read- 
ing it  once,  read  it  again,  for  it  will  require  many 
readings.  Abridg^e  it;  commonplace  it;  make  it 
your  own ;  apply  to  it  all  the  faculties  of  your 
mind.  Then  read  Sergeant  Hawkins  to  throw 
light  upon  Lord  Coke.  Then  read  Wood  again 
to  throw  light  on  Sergeant  Hawkins.  And  then 
read  the  Statutes  at  Large  to  throw  light  on 
Wood." 

If  these  were  the  trials  of  the  English  student  in 
the  early  days  of  the  law,  what  shall  we  say  as  to 
those  of  the  American  student  of  to-day?  The 
law — both  common  and  statute  law — has  become 
infinitely  more  complex.  The  student  is  sup- 
posed to  begin  at  the  foundation  not  only  of  the 
English  Common  Law  but  in  many  cases  to  delve 
into  the  half-forgotten  lore  of  the  Civil  or  Ro- 
man laAv.  Thousands  of  text-writers  now  com- 
pete for  the  mastery  in  stating  with  voluminous 
detail  the  ever  expanding  subtilities  of  the  law; 
volumes  have  been  written  upon  subjects  as  copy- 
right, patents,  commercial  law,  etc.,  mentioned  in 
a  few  lines  by  Blackstone,  if,  indeed,  they  were 
reached  at  all  by  that  exhaustive  commentator; 
the  diverse  statutes  and  precedents  in  the  differ- 
ent States  add  to  the  beginner's  confusion,  while 
the  extreme  particularity  and  detail  with  which 
every  personal  and  property  right  of  the  indi- 
vidual is  guarded  by  statute  makes  the  task  of 
the  law  student  seem  well-nigh  endless. 


HOW   TO    STUDY    LAW.  15 

Sec.  4.  HOW  LAW  HAS  BEEN  STUDIED 
SINCE  BLACKSTONE'S  TIME.— Black- 
stone's  Commentaries  on  the  Laws  of  England 
were  first  published  in  1765,  and  smce  that  time 
almost  every  student  of  the  law  has  made  exten- 
sive use  of  this  valuable  work  from  the  incep- 
tion of  his  studies.  While  this  famous  work  is 
now  largely  of  historical  value  only,  it  is  still  the 
beginner's  fate  to  be  asked  to  partake  of  it  in 
large  doses.  Prof.  Walker  has  stated  the  true 
reason,  we  believe,  for  the  continued  popularity 
of  Blackstone.  He  says :  "There  is  no  work  on 
American  law  at  all  suitable  for  a  first  book;  and 
we  are  compelled,  for  want  of  such  a  work,  to 
commence  with  Blackstone's  ■Commentaries  on 
English  Law,  to  learn  the  rudiments  of  Ameri- 
can law."    Walk.  Am.  Law.  4. 

We  now  have,  it  is  true.  Walker's  work,  and 
Kent's  Commentaries,  which  are  valuable  to  the 
American  student  and  much  more  practical  than 
Blackstone,  yet  these,  too,  have  been  largely  out- 
grown by  the  rapid  changes  in  the  American 
legal  systems.  And  our  most  successful  law 
schools  make  use  of  them  simply  as  reference 
books,  and  acquaint  their  students  with  the  his- 
tory of  the  common  law  by  means  of  abridged 
oral  lessons  upon  the  leading  subjets.  The  stu- 
dent is  then  occupied  with  principles,  leading 
cases,  and  statutes,  with  seme  attention  to  details 
of  practical  procedure.  The  student  who  under- 
takes to  master  the  science  without  any  assist- 


t6  HOW  TO  STUDY  LAW. 

ance  from  those  who  have  already  gone  over  the 
ground  has  a  difficult  task,  and  one  which  he  will 
never  accomplish  without  a  world  of  pluck  and 
perseverance. 

Sec.  5.  ADVANTAGES  OF  THE  CY- 
CLOPEDIA OF  LAW.— The  important  as- 
sistance which  the  law  student  needs  is,  first,  to 
be  enabled  to  read  the  fundamentals  of  the 
science  unnderstandingly;  second,  to  have  fur- 
nished to  him  or  designated  what  he  should  read; 
and,  third,  to  have  such  reading  collected  into 
reasonable  compass.  All  this  is  done  by  the 
Cyclopedia  of  Law. 

First.  The  student  is  enabled  to  read  law  un- 
derstandingly  by  this  system,  since  the  whole  aim 
and  scope  of  the  school  is  directed  to  instruct  the 
novice  and  gradually  and  systematically  add  to 
liis  present  knowledge  an  accurate  legal  educa- 
tion. Most  text-books  upon  legal  subjects  are 
for  the  benefit  of  trained  men — professionals — 
and  hence  little  care  is  taken  to  simplify  the  rules 
laid  down.  This  school  is  for  beginners,  for  stu- 
dents just  setting  out  upon  an  unknown  road, 
and  every  precaution  will  be  taken  to  make  each 
step  clear  and  smooth. 

Second.  The  school  furnishes  in  the  first  in- 
stance just  what  is  to  be  read,  and  then  desig- 
nates, by  way  of  supplemental  readings,  such 
other  and  further  sources  of  knowledge  as  will 
be  most  convenient  and  beneficial  to  the  student. 

Third.    This  information  is  collected  into  the 


HOW  TO   STUDY    LAW.  17 

briefest  possible  form,  with  all  unnecessary  and 
antiquated  details  lopped  off,  though  the  refer- 
ences are  sufficiently  varied  as  to  permit  the  stu- 
dent with  a  great  amount  of  leisure  to  investigate 
in  detail  any  important  or  special  subject. 

Sec.  6.  THE  NECESSITY  OF  LEGAL 
KNOWLEDGE.— To  speak  of  the  necessity  of 
some  knowledge  of  the  law  to  one  who  intends 
making  the  law  his  profession  is  doubtless  unnec- 
essary. Yet  we  occasionally  hear  of  persons  in 
those  States  where  a  good  moral  character  is  suf- 
ficient to  gain  admission  to  the  bar,  who  are  ab- 
solutely deficient  in  the  very  rudiments  of  the 
profession  which  they  are  legally  entitled  to  fol- 
low. The  results  of  admitting  incompetent  per- 
sons to  practice  are,  a  lowering  of  the  standard  of 
the  profession,  and  a  jeopardizing  of  the  interests 
of  the  client  often  amounting  to  a  denial  of  right. 

To  the  average  student  intending  to  become  a 
lawyer,  we  need  say  no  more  in  regard  to  the 
necessity  of  his  understanding  the  science  or  pro- 
fession he  wishes  to  make  his  life's  calling.  But 
there  is  a  pressing  necessity  for  every  man  and 
every  woman  to  understand  at  least  the  rudi- 
ments of  the  law.  By  a  rule  of  law,  as  ancient  as 
the  law  itself,  every  one  is  conclusively  pre- 
sumed to  know  the  rights  and  duties  which  it 
confers  or  compels.  That  this  is  a  violent  pre- 
sumption no  one  will  question,  for  we  believe 
there  is  none  that  has  ever  been  made  that  varies 
so  generally  from  the  truth.     Still  the  rule  re- 


i8  HOW  TO  STUDY  LAW. 

mains,  and  in  general  all  sane  adults,  ignorant  or 
wise,  are  responsible  civilly  or  criminally  for  any 
and  all  transgressions  of  the  fixed  rules  of  the 
State  or  nation  which  we  call  laws.  They  are 
likewise  dependent  upon  these  rules  for  the  en- 
forcement of  their  rights,  and  if  they  know  not 
their  rights  under  the  law  how  can  they  enforce 
them?  Laws,  too,  are  not  always  in  conformity 
to  what  natural  reason  would  lead  one  to  infer 
the  law  ought  to  be,  and  so  there  may  easily  be 
an  honest  infringement  of  the  strict  letter  of  the 
law,  which  will,  nevertheless,  subject  the  offender 
to  the  prescribed  penalty.  The  law,  as  we  shall 
see,  in  providing  what  is  right,  and  forbidding 
what  is  wrong,  acts  arbitrarily,  and  recognizes  no 
absolute  rule  save  the  intent  and  will  of  the  law- 
makers. 

It  is  apparent  that  every  man,  high  and  low, 
should  have  some  general  knowledge  of  the  laws 
under  which  he  lives.  Without  such  knowledge 
he  is  in  continual  dread  of  some  coercive  and 
irresistible  power,  which  he  may  ignorantly  of- 
fend at  any  moment;  or 'his  dearest  rights  may  be 
infringed  upon  by  others  and  though  redress  be 
within  reach  he  does  not  know  that  there  is  re- 
dress for  him.  Surely,  these  reasons  would  suf- 
fice to  encourage  every  person  to  familiarize  him- 
self with  the  general  principles  of  the  laws  to 
which  he  is  subject. 

But  there  are  other  and  higher  motives  which 
should  induce  each  citizen  to  acquaint  himself 


HOW  TO   STUDY   LAW.  19 

with  the  laws  of  our  land — a  land,  "perhaps  the 
only  one  in  the  universe,  in  which  political  or 
civil  liberty  is  the  very  end  and  scope  of  the  con- 
stitution." Ours  is  a  popular  government.  Each 
man  in  casting  a  vote  is,  in  respect  to  that  vote,  a 
law-maker.  To  cast  his  vote  judiciously  he 
should  have  some  knowledge  of  what  law  is,  and 
the  ends  it  is  expected  to  conserve.  In  England, 
the  filii  nobilium — sons  of  noblemen — were  in- 
structed in  the  laws  that  they  might  protect  and 
guard  their  estates  and  privileges.  In  America, 
by  grace  of  God,  all  men  are  filii  nobilium,  and 
if  they  would  retain  this  priceless  heritage  be- 
stowed by  the  fathers  they  must  acquire  a  knowl- 
edge of,  and  a  love  for  "those  equitable  rules  of 
action  by  which  the  meanest  individual  is  pro- 
tected from  the  insults  and  oppression  of  the 
greatest." 

Sec.  7.  BENEFITS  OF  LEGAL  EDUCA- 
TION.— "I  think  it  an  undeniable  position,"  said 
Blackstone,  in  the  introduction  to  his  series  of 
law  lectures,  "that  a  competent  knowledge  of  the 
laws  of  that  society  in  which  we  live  is  the 
proper  accomplishment  of  every  gentleman  and 
scholar;  a  highly  useful — I  had  almost  said  essen- 
tial— part  of  liberal  and  polite  education."  But 
the  average  American  of  to-day  desires  further 
benefits,  and  is  prone  to  ask  after  the  practical 
advantages  of  legal  study,  and  in  this  case  he  can 
be  fully  satisfied,  since  in  no  branch  of  educa- 
tion are  the  benefits  so  varied  and  extensive  as  in 
that  of  the  law. 


20  HOW  TO  STUDY  LAW. 

From  birth  until  deatli  die  interests,  not  to  say 
destiny,  of  each  individual  is  indissolubly  con- 
nected with  the  law  of  the  land;  every  incident  of 
his  career,  every  personal  and  property  right, 
every  domestic,  social,  and  business  relation  is 
regtilated  or  defined  by  it.  It  may  not  be  possi- 
ble or  practicable  for  every  man  to  be  his  own 
lawyer,  but  it  is  possible  and  important  for  a  free- 
man to  be  familiar  with  the  rudiments  of  the 
science  which  guards^^his  liberties,  and  to  be  cog- 
nizant of  the  general  principles  which  govern  his 
every  day  business  affairs.  This  information 
should  be  taught  in  the  public  schools,  and  is,  in 
our  opinion,  far  more  important  than  some  of 
the  things  which  are  taught  there  at  present. 

It  is  astonishing  that  in  a  progressive  age,  and 
in  a  land  literally  dotted  with  free  schools,  the 
great  mass  of  citizens  should  be  utterly  unac- 
quainted with  the  laws  regulating  contracts,  the 
acquiring  and  disposing  of  real  and  personal 
property,  and  the  fiduciary  relations;  or  with 
commercial  usages  and  the  statutory  provisions 
governing  tlie  civil  and  criminal  liability  of  in- 
dividuals. We  believe  that  the  time  has  come  to 
dispel  the  ignorance  of  the  masses  in  regard  to 
the  laws  of  the  land,  and  for  a  general  study  of 
that  science  "which  distinguishes  the  criterions  of 
right  and  wrong;  which  teaches  to  establish  the 
one  aoid  prevent,  punish,  or  redress  the  other; 
which  employs  in  its  theories  the  noblest  facul- 
ties of  the  soul,  and  exerts  in  its  practice  the  car- 


HOW   TO    STUDY    LAW.  21 

Jinal  virtues  of  the  heart;  a  science  whicli  is  uni- 
versal in  its  use  and  extent,  accommodated  to 
each  individual,  yet  comprehending  the  whole 
community." 

Sec.  8.  WHAT  PREVIOUS  EDUCATION 
THE  LAW  STUDENT  SHOULD  HAVE.— 
Every  particle  of  education  one  caai  possess  along 
any  and  all  lines  will  be  of  help  in  the  study  of  the 
law.  Even  technical  or  professional  training  in 
the  allied  sciences  would  be  advantageous,  so  no 
student  of  the  law  need  fear  that  he  may  know  too 
much.  But  the  important  question  is,  how  much 
should  the  student  know?  Shall  we  look  to  the 
past  method  of  legal  education,  or  to  the  law 
schools  of  to-day  to  determine  this  question?  In 
either  event  we  shall  find  a  great  variety  of  an- 
swers. In  the  multitudinous  examples  of  emin- 
ent lawyers  we  might  cite,  some  were  fully  and 
carefully  trained  in  the  highest  seats  of  learning, 
while  others  were  without  any  of  the  advantages 
of  the  so-called  higher  education.  Among  the 
law  schools  and  universities  of  to-day  we  find 
various  standards;  some  requiring  a  collegiate 
education,  including  an  extended  course  in  the 
dead  languages  and  a  term  of  years  spent  in  per- 
using the  theories  and  sophisms  of  the  latest  ex- 
pounder of  "isms"  and  "ologies,"  and  others  that 
leave  their  doors  open  to  aal  who  have  a  fair  un- 
derstanding of  the  English  language  and  the  or- 
dinary branches  taught  in  the  common  schools. 
In  the  universities  and  colleges  the  tendency  is 


22  HOW  TO   STUDY   LAW. 

to  raise  the  standard,  and  within  the  past  few 
years  the  standard  in  some  schools  has  risen  from 
the  :0\vest  to  the  highest  requirements.  It  is  not 
our  purpose  to  decry  this  raising  of  the  standard 
of  admission  to  law  schools,  though  we  may  be 
pardoned  for  sympathizing  with  and  repeating 
the  conclusion  of  another  writer  who  has  can- 
vassed these  two  methods  of  dealing  with  pros- 
pective students:  "One  shows  the  selfish  side  of 
learning,  and  the  other  the  more  liberal  and 
praiseyvorthy.  The  former  would  deny  entrance 
to  the  ranks  of  the  profession  to  the  ambitious 
poor  man,  while  the  latter  would  open  the  doors 
wide  enough  to  take  in  any  one  who  has  ambition 
and  energy  enough  to  pursue  the  study." 

Should  tlie  schools  carry  their  advance  stand- 
ard to  the  extent  of  asking  that  these  re- 
quirem.ents  be  made  part  of  the  qualifications 
necessary  for  the  admission  to  the  bar,  we 
should  most  seriously  object.  The  ancient 
languages,  and  the  varied  store  of  ornamental 
education  which  go  to  make  up  university 
training  should  not  be  forced  upon  every  youth 
who  desires  to  set  up  as  an  expounder  and 
practitioner  of  the  plain  and  exact  rules  of  jus- 
tice and  rights  which  make  up  our  legal  system. 
In  America,  we  have  had,  and  I  trust  may  ever 
have,  two  sorts  of  lawyers  and  judges,  equally 
capable,  honest,  and  beneficial.  One  sort  came 
from  the  colleges,  the  other  from  the  farms  and 
workshops  direct;  one  skilled  in  all  the  flowery 


HOW   TO   STUDY   LAW.  23 

phrases  of  antiquity,  and  overflowing  with  his- 
torical disquisitions  upon  legal  theories;  the 
other  with  the  metal  of  their  brain  and  heart 
robust  and  free  and  prepared  to  ring  out  loud 
and  clear  when  struck  by  the  unanswerable  logic 
of  progress,  or  wrung  by  the  pleadings  of  op- 
pressed humanity,  "Men  have  worn  the  judicial 
gown  who  have  -never  seen  the  inside  of  a  Latin 
grammar,  and  they  were  none  the  less  able 
judges,  despite  the  fact."  Andrew  Jackson  and 
Daniel  Webster  were  equally  necessary  to  mold 
and  develop  our  civilization,  though  the  former 
was  but  the  rough,  untutored  frontiersman  and 
the  other  the  college-bred  student.  At  the  bar 
they  were  equally  serviceable;  and  in  the  gravest 
affairs  of  state  who  shall  say  that  the- honest  de- 
termination and  direct  Americanism  of  the 
staunch  "Old  Hickory"  was  not  as  much  needed 
as  the  careful  and  profound  declamations  of  Web- 
ster? Abraham  Lincoln  and  William  H.  Seward 
again  illustrate  the  two  types  of  American  law- 
yers. The  former  was  home-made,  his  ideas  of 
right  and  wTong  w^ere  God-given  and  unbiased 
by  the  subtle  theories  of  the  past  of  human  in- 
stitutions ;  the  latter  was  coached  and  crammed 
in  the  institutions  of  learning  and  w^as  disposed 
to  look  askance  at  his  more  humble  brother  from 
the  plains.  Both  were  led  to  espouse  the  cause 
of  the  enslaved  negro,  and  to  do  their  utmost  to 
vindicate  his  right  to  liberty  and  equality  under 
the  law.     We  are  permitted  to  judge  whose  in- 


24  HOW  TO   STUDY   LAW. 

fluence  was  the  greater,  whose  words  were  the 
more  potent  to  bring  about  a  general  recognition 
of  a  principle  which  is  now  fundamental.  When 
we  have  decided  whether  the  sublime  yet  unos- 
tentatious words  of  Lincoln  or  the  pompous 
declamations  of  Seward  were  the  more  effica- 
cious ;  and  whether  the  uncouth  but  true-hearted 
executive,  or  his  cultured  and  self-important  sec- 
retary were  more  serviceable  to  the  nation  in  its 
darkest  hour,  we  shall  have  decided  the  contro- 
versy between  the  college-trained  and  the  home- 
trained  lawyer. 

One  of  the  prerequisite  attainments  of  the  stu- 
dent of  law  suggested  by  Blackstone  is,  that  he 
be  able  to  reason  with  precision,  and  separate 
argument  from  fallacy,  by  the  clear,  simple  rules 
of  pure  unsophisticated  logic ;  to  fix  his  atten- 
tion, and  to  steadily  pursue  truth  through  the 
most  intricate  deductions  by  plain  mathematical 
demonstrations.  This,  we  think,  touches  the  key- 
note of  the  student's  qualifications  to  begin  the 
study  of  the  law.  There  is  no  absolute  need  of 
his  having  a  collegiate  education ;  a  fair  ground- 
insT  in  the  ordinarv  common  school  branches, 
supplemented  by  home  readings  on  the  History 
of  the  English  and  American  people  and  the  de- 
velopment of  our  social  and  political  institutions 
will  enable  him  to  pursue  the  study  of  the  law 
with  the  highest  credit  and  advantage. 

The  languages,  as  Latin,  Greek,  French,  would 
not  assist  the  student  as  much  as  many  suppose. 


HOW  TO   STUDY   LAW.  25 

True,  the  language  of  the  law  was  at  one  time  a 
compound  and  barbarous  jargon ;  from  the  con- 
quest of  England  in  1066  until  1363,  legal  pro- 
ceedings were  conducted  in  Norman  French.  In 
1363  the  statutes  required  the  proceedings  to  be 
conducted  in  English  and  enrolled  in  Latin,  and 
this  was  the  general  rule  until  1730,  when  an  act 
of  Parliament  required  the  records  to  be  made  in 
English.    (Walker's  Am.  Law,  2.) 

Some  of  the  terms  used  in  these  early  proceed- 
ings at  law  have  remained,  and  have  come  to 
possess  a  definite  technical  meaning,  but  the  stu- 
dent learns  the  meaning  of  these  terms  as  he  does 
the  principles  of  the  law,  and  thus  comes  to  use 
them  as  clearly  and  correctly  as  though  familiar 
with  the  language  of  which  they  formed  a  part. 
Wliile  a  number  of  these  technical  law  terms 
must  be  mastered,  they  are  not  favored  in  mod- 
ern practice  and  many  of  them  are  becoming  ob- 
solete, and  where  suitable  modern  terms  can  be 
used  they  are  to  be  preferred.  Thus  a  fair  knowl- 
edge of  the  English  language  is  all  that  the  stu- 
dent need  have,  and  in  the  course  of  his  study  the 
terms  derived  from  the  older  languages,  as  "bail- 
ment," "trover,"  "tort,"  etc.,  will  become  as  fa- 
miliar to  him  as  the  technical  expressions,  "hear- 
say," "rule  in  Shelley's  case,"  etc.,  which  are  used 
by  the  profession.  Our  position  is,  that  these 
terms  must  be  analyzed  and  learned  by  the 
student ;  no  one  can  comprehend  them  spon- 
taneously, since  they  have  come  to  have  a  set, 


26  HOW  TO  STUDY  LAW. 

technical  application  which  cannot  be  varied  and 
which  no  other  expression  will  convey. 

A  laughable  incident  is  reported  about  a  stu- 
dent who  relied  on  his  general  information  to  an- 
swer the  question:  "What  is  the  rule  of  law  in 
Shelley's  case?"'  his  answer  was:  "The  rule  in 
Mr.  Shelley's  case  is  the  same  as  in  any  other 
man's  case ;  the  law  being  no  respecter  of  per- 
sons." Another  student  taking  the  bar  examina- 
tion in  Ohio  in  March,  1897,  answered  the  ques- 
tion, "What  is  hearsay  ?  Give  five  exceptions  to 
the  general  rule  in  regard  to  hearsay,"  as  follows : 
"It  is  natural  for  a  man  to  here  all  he  can  if  he 
has  good  hearing;  this  is  a  natural  instinkt  for 
humanity,  and  there  is  no  exceptions."  Students 
who  make  such  answers  are  generally  set  down 
as  being  incapable  of  learning  law  at  all,  yet  we 
believe  their  chief  difficulty  lay  in  not  having 
access  to  comprehensive  treatises  upon  the  sub- 
jects constituting  the  examination.  Important 
branches  of  the  law  may  be  thoroughly  mastered 
by  the  office  student,  and  he  may  be  ever  so 
capable,  and  yet  likely  to  make  mistakes  upon 
subjects  not  covered  by  his  readings.  But  in  the 
latter  case  the  composition  and  spelling  indicate 
such  a  lack  of  the  fundamentals  of  education,  as, 
if  not  corrected,  will  prove  a  bar  to  success  in  any 
calling. 

We  would  advise  the  student,  if  such  there 
be,  who  cannot  master  the  common  branches, 
as    spelling,    reading,    writing,    grammar,    etc., 


HOW   TO    STUDY    LAW.  27 

not  to  take  up  the  law  as  a  profession,  merely 
because  he  has  a  gift  of  "gab."  This  latter  quali- 
fication is  coming  to  be  less  and  less  in  demand. 
And  while  we  may  deprecate  the  spirit  of  the 
times  that  does  not  make  orators,  we  can  but 
commend  the  quiet  and  orderly  bearing  of  most 
counselors  in  the  conduct  of  a  case.  No  bellow- 
ing, no  contortions,  no  dramatic  poses ;  simply  a 
natural  and  manly  presentation  of  the  client's 
cause,  in  the  clearest  and  most  concise  language 
the  advocate  can  command.  There  may  be  some 
advocates  who  yet  shed  the  "crocodile  tear"  in 
pleading  for  their  client,  but  for  every  timid  soul 
so  won  we  believe  the  disgust  of  other  honest 
and  manly  jurors  is  aroused  by  such  practices  of 
counsel  who  thereby  brings  defeat  to  the  cause 
of  his  client.  It  may  not  be  amiss  to  mention 
here  a  part  of  Judge  Story's  sage  advice  to  young 
lawyers : 

"When'er  you  speak,  remember  every  cause 
Stands  not  on  eloquence,  but  stands  on  laws ; 
5|C         ******** 
"Loose  declamation  may  deceive  the  crowd, 
And  seem  more  striking  as  it  grows  more  loud ; 
But  sober  sense  rejects  it  with  disdain. 
As  naught  but  empty  noise,  and  weak  as  vain." 
In  conclusion,  we  would  say  that  any  American 
youth  who  really  desires  to  follow  the  law  as  a 
profession,  and  all  citizens  anxious  to  become 
familiar  with  the  principles  afit'ecting  their  per- 
son and  property,  need  not  hesitate  to  begin  the 


28  HOW  TO  STUDY  LAW. 

study  of  law  if  they  are  able  to  read  and  retain 
thoughts  and  precepts,  and  to  make  deductions 
therefrom  and  to  apply  them  to  the  questions  thai 
daily  arise.  With  such  qualifications  any  person 
can,  by  industry  and  application  become  pro- 
ficient in  the  law.  Our  authority  for  this  state- 
ment is  the  fact  that  thousands  of  eminent  per. 
sons — attorneys  and  judges — began  with  no 
further  qualifications. 

Sec.  9.  THE  TIME  REQUIRED  TO 
LEARN  LAW.— The  time  which  the  student 
will  require  to  learn  law  will  vary  with  the  stu- 
dent and  the  method  by  which  he  seeks  to  ac- 
quire his  knowledge.  That  a  long  term  of  years 
entirely  devoted  to  legal  study  is  necessary  we 
do  not  believe.  Neither  do  we  believe  that  any 
one,  however  great  his  genius,  can  master  the 
legal  science  in  a  few  weeks  or  months'  study. 
The  method  of  study  is  important  if  the 
time  is  to  be  reduced  to  the  smallest  possible 
limit.  A  student  may  read  for  years  among  the 
law  books  and  reports  and  not  come  to  as  full  a 
knowledge  of  the  law  as  by  a  single  year's  meth- 
odical study  under  a  competent  instructor  or  with 
the  assistance  of  a  condensed  and  capable  series 
of  guide  lessons.  Upon  this  subject  another 
writer  has  said : 

"In  the  first  place,  then,  it  may  be  stated  that 
in  no  study  is  a  capable  guide  more  necessary 
than  in  the  study  of  the  law.  It  may  as  well  be 
determined  in  the  beginning  that  unless  one  can 


HOW  TO   STUDY    LAW.  29 

have  capable  direction  in  his  study  he  may  as 
well  turn  his  attention  to  other  fields  of  effort. 
The  field  of  law  is  so  broad,  so  compassed  about 
by  jungles  of  difficulties,  almost  interminable, 
even  to  the  experienced  student,  so  cut  up  by  in- 
tersecting paths  that  confuse  and  tend  to  lead 
the  student  astray,  so  uninviting  in  some  direc- 
tions, which,  though  uninviting  are  important, 
that  the  student  who  proceeds  to  explore  it  with- 
out a  chart  or  compass  will  find  himself  lost  ere 
he  is  fairly  started  upon  his  journey.  *  *  * 
The  one  matter  of  choice  of  books  alone  will  pre- 
sent a  difficulty  that  cannot  be  solved  by  the 
student  without  aid.  It  has  been  said  that  if  a 
man  should  calculate  on  living  to  the  age  of  sixty 
years,  and .  should  devote,  with  great  industry, 
forty  of  these  years  to  the  study  of  books,  the 
most  that  he  could  accomplish  in  that  time  would 
be  the  perusal  of  about  1,600  octavo  volumes  of 
500  pages  each.  One  could  live  a  life  time,  spend- 
ing his  entire  time  in  the  reading  of  the  law  and 
not  read  a  single  book  twice.  It  is  important, 
therefore,  that  the  choice  should  be  judicious, 
and  after  it  is  made,  the  whole  should  be  studied 
with  method." 

The  student  who  has  the  advantages  of  the 
Home  Law  School  Series,  as  well  as  students  at- 
tending a  college  of  law,  are  so  aided  and  guided 
that  the  actual  amount  of  time  required  to  gain 
a  thorough  knowledge  of  the  principles  of  law 
is  not  great.    Some  years  ago  the  University  of 


30  HOW  TO  STUDY   LAW. 

Michigan  had  what  was  called  a  one  year  course, 
for  students  who  had  some  previous  knowledge 
of  the  law,  while  the  regular  course  of  study  em- 
braced two  years  of  nine  months  each.  The 
course  has  now  been  enlarged  to  cover  another 
year.  As  a  matter  of  fact,  tlicre  was  little  per- 
ceptible difference  as  regards  attainment  between 
the  "one  year"  men,  as  they  were  called,  and  the 
full-course  students.  And  we  venture  to  say  that 
the  students  finishing  the  course  in  two  years 
made  as  good  lawyers,  and  were  as  capal^le  as  the 
students  now  taking  the  three  years'  course  will 
be.  What  does  this  statement  signify  ?  Not  that 
the  less  time  spent  as  a  student  of  law  the  better 
will  be  the  chances  of  success,  but  simply  that 
student  life  is. but  the  securing  of  the  indexes  to 
more  thorough  and  advanced  work,  and  should 
not  be  permitted  to  occupy  too  much  of  one's 
life.  This  idea  is  well  stated  by  Blackstone,  who 
quotes  Sir  John  Fortescue  as  saying:  "For, 
though  such  knowledge  as  is  necessary  for  a 
judge  is  hardly  to  be  acquired  by  the  lucubra- 
tions of  twenty  years,  yet,  with  a  genius  of  tolera- 
ble perspicacity,  that  knowledge  which  is  fit  for 
a  person  of  birth  or  condition  may  be  learned  in 
a  single  year,  without  neglecting  his  other  im- 
provements." 

Another  eminent  authority  has  said :  "If  one 
shall  enter  upon  the  study  of  the  law  under  the 
impression  that  the  extent  of  his  advancement 
must  necessarily  bear  some  relation  to  the  num- 


HOW  TO   STUDY   LAW.  31 

ber  of  hours  consumed  in  reading,  and  the  num- 
ber of  pages  devoured,  and  shall,  in  consequence 
of  that  mistaken  impression,  hurry  over  ground 
where  he  should  proceed  slowly,  cautiously,  and 
with  much  pains-taking,  he  must  be  brought  at 
last  face  to  face  with  the  fact  that  he  is  reading  to 
little  purpose,  and  catching  but  surface  views. 
For  it  is  as  true  with  the  mental  as  it  is  with  the 
physical  life,  that,  to  nourish  and  strengthen  the 
powers,  there  must  be  time  and  opportunity  for 
digestion ;  and  this  process  demands  considera- 
tion, reflection,  and  patient  and  laborious 
thought.  *  *  *  The  study  of  the  law  must 
be  with  active  mind  and  receptive  understand- 
ing."   Cooley's  Introd.  to  BL,  p.  xi. 

Sec.  10.  SHOULD  ALL  THE  STU- 
DENT'S TIME  BE  DEVOTED  TO  STUDY? 
— The  question  whether  the  student  should  for- 
sake ail  else,  including  manual  labor  and  other 
mental  work,  to  take  up  the  study  of  the  law  is 
easily  answered.  The  answer  being  that  there 
is  no  necessity  for  so  doing,  and  the  results  at- 
tained by  the  student  will  be  better  if  the  separa- 
tion is  not  made.  Blackstone  says:  c  "Sciences 
are  of  a  social  disposition,  and  flourish  best  in 
the  neighborhood  of  each  other ;  nor  is  there  any 
branch  of  learning  but  may  be  helped  and  im- 
proved by  assistance  drawn  from  other  arts."  So 
it  is  plain  that  other  studies  may  be  pursued 
simultaneously  with  that  of  the  law  and  be  of  in- 
creased benefit  to  the  student.     But  thousands 


32  HOW  TO  STUDY  LAW. 

of  persons  desire  to  know  if  they  can  continue  in 
their  ordinary  daily  avocations  and  at  the  same 
time  study  law  in  the  leisure  hours  their  present 
calling  allows  them?  We  answer  this  query  in 
the  affirmative,  and  give  as  our  reason  for  so  do- 
ing the  fact  that  thousands  have  already  done  so. 
Scores  of  teachers,  stenographers,  telegraph  op- 
erators, commercial  travelers,  clerks  of  all  de- 
scriptions, farmers,  blacksmiths,  artisans,  etc., 
have  studied  law  while  holding  their  positions 
and  have  come  to  be  creditable  and  capable  at- 
torneys. It  must  follow  that  any  person,  )'Oung 
or  old,  working  for  himself  or  for  others,  may,  if 
he  is  energetic,  find  sufficient  leisure  time  to  read 
as  much  law  each  day  as  would  be  covered  by  an 
ordinary  lecture  in  a  law  school.  These  home- 
opathic doses  of  law  will  prove  entertaining  as 
well  as  instructive,  and  if  kept  up  for  a  period 
covering  several  years,  as  is  contemplated  by  the 
Home  Law  Scliool  Series  will  familiarize  one 
with  the  essentials  of  a  legal  education.  We 
insert  here  some  remarks  by  an  attorney  v/ho 
favors  this  method  of  study.    He  says  : 

"I  would  have  you  emulate  the  example  of 
persons  wliose  lime  is  methodically  divided. 
Some  men  may  not  be  able  to  give  but  thirty 
minutes  a  day  to  the  study  of  the  law,  and  some 
may  be  able  to  give  their  entire  time.  The  one 
who  can  give  but  thirty  minutes  need  not  be  dis- 
couraged because  he  cannot  give  more.  *  *  * 
It  is  not  how  much  we  read,  nor  how  long  we 


HOW  TO   STUDY   LAW.  33 

are  in  reading  it,  but  how  we  read  it.  A  student 
who  has  but  thirty  minutes  is  much  more  liable  to 
accomplish  what  he  undertakes  in  the  way  in 
which  it  should  be  done,  digesting  it  small  por- 
tions at  a  time,  than  is  the  man  whose  whole  time 
is  at  his  disposal,  and  who  reads  law  as  if  it  were 
necessary  and  possible  to  take  it  all  in  at  one 
sitting.  *  *  *  One  of  the  most  frequent 
complaints  I  hear  is:  'I  have  no  time.'  I  have 
little  patience  with  excuses  of  this  character,  since 
I  know  that  in  nine  cases  out  of  ten  the  excuse  is 
one  which  is  not  based  on  facts.  Time  to  pursue 
any  line  of  study  docs  not  mean  that  one  must  of 
necessity  devote  several  hours  of  each  day  to  its 
pursuit.  *  *  *  A  few  moments  each  day,  if 
given  to  the  study  at  regular  intervals,  will  be 
sufiicent  to  accomplish  wonders  in  the  end,  and 
the  end  need  not  be  so  very  far  distant.  I  have 
in  mind  a  student  who  has  but  thirty  minutes  in 
the  day  that  he  can  call  his  own,  and  that  thirty 
minutes  is  the  thirty  minutes  before  breakfast. 
His  plan  is  to  read  thoroughly  and  attentively 
during  the  thirty  minutes,  with  pencil  in  hand, 
jotting  down  the  main  points  as  he  passes  over 
them.  The  memorandum  thus  made  he  carries 
with  him  through  the  day,  and  at  odd  intervals 
in  his  work  refers  to  it,  thus  thinking  it  over  and 
unconsciously  digesting  it.  His  work  is  of  more 
benefit  to  him  than  were  he  to  spend  three  or  four 
hours  each  day  in  cramming  his  head  with  a  vast 
amount  of  reading,  little  of  which  he  is  able  to 


34  HOW  TO  STUDY   LAW. 

retain,  and  much  less  of  which  can  he  understand 
or  make  part  of  his  working  knowledge."  Thus 
is  the  question  of  time  for  the  diligent  person 
entirely  removed. 

But  while  we  thus  designate  how  the  person 
employed  in  other  work  may  study  law,  we  do 
not  wish  to  slight  the  fact  that  this  putting  to  use 
hours  of  leisure  is  a  task  that  only  men  of  great 
personal  control  and  indomitable  energy  can 
compass.  Study,  to  many  persons  is  a  bugaboo 
only  to  be  tolerated  in  the  school-room.  We  all 
observe  and  credit  the  Franklins  and  Greeleys, 
but  are  slow  to  put  in  practice  the  rules  of  life 
which  insured  their  ultimate  greatness.  Frank- 
lin's motto  was:  "Leisure  is  time  for  doing 
something  useful,"  and  the  "something  useful" 
was  the  development  of  his  mind  for  the  respon- 
sibilities of  life.  The  student  who,  like  Franklin, 
will  separate  himself  from  his  companions  and 
pursue  steadily  a  course  in  law  should  have  the 
additional  credit  of  having  mastered  present  self- 
ish considerations  for  his  ultimate  good — a  feat 
which  only  great  and  noble  souls  have  ever  un- 
dertaken. 

We  recall  a  gentleman  who,  though  possessing 
a  fair  education,  began  to  apply  himself  during 
leisure  hours  to  the  study  of  law.  He  subse- 
quently secured  a  position  in  a  law  school,  where 
he  continued  to  make  the  best  possible  use  of  his 
spare  moments,  and  so  highly  did  he  prize  them 
and  fear  that  they  might  not    be    usefully  em- 


HOW  TO   STUDY   LAW.  35 

ployed  that  he  had  framed  and  hung  directly 
over  his  desk  the  following  motto : 


LOST, 

TWO  GOLDEN  HOURS, 

Somewhere  between 

Sunrise  and  Sunset. 

No  Reward  Is  Offered.    They 

Are  Gone  Forever. 


The  gentleman  is  now  a  well-known  lecturer 
and  expounder  of  the  law,  his  careful  and  assidu- 
ous use  of  leisure  time  have  brought  him  both 
credit  and  success. 

Great  deeds,  great  triumphs,  great  men,  have 
their  beginnings  in  small  things — a  resolve  made, 
a  habit  formed,  a  temptation  resisted,  or  a  leisure 
hour  well  spent  may  have  been  the  first  cause — 
the  igniting  spark,  of  a  fire  which  should  glow 
undimmed  until  the  end  of  time.  Just  as  the 
little  brook  carves  its  way  through  the  mountain 
which  rises  athwart  its  path  and  goes  steadily 
onward,  gathering  volume  and  strength  by  the 
wayside,  until  at  last  as  a  m.ighty  river  it  joins  the 
ocean — the  mother  of  waters — have  the  great 
lawyers,  judges-  and  statesmen — the  Storys, 
Kents,  Cooleys,  Lincolns — by  unrelaxed  efforts 
covering  many  years,  growai  stronger  day  by 
day,  until  at  last  the}^  loom  up  as  the  giant 
heroes  of  their  profession  and  age.  Reader  and 
student,  so  may  you  ascend,  not  swiftly  as  on  the 


36  HOW  TO  STUDY  LAW. 

eagle's  wing,  but  slowly,  surely,  if  it  may  be  said 
of  you,  as  of  the  other  heroes — 

''While  others  slept, 
He  toiled  upward  in  the  night." 

Sec.  II.  THE  COST  OF  A  LEGAL  EDU- 
CATION.— An  important  question  to  many 
persons  wishing  to  study  law  is.  How  much  will 
it  cost  ?  And  we  are  sorry  to  say  that  many  per- 
sons in  the  past  have  been  deterred  from  attempt- 
ing the  study  because  of  the  large  expense  neces- 
sitated. The  expense  of  a  law  school  education 
ranges  from  $500  to  $1,000,  an  amount  that 
may  well  deter  many  persons  who  have  to  de- 
pend upon  their  own  earnings,  and  who  also  may 
have  upon  them  the  care  and  support  of  others, 
from  seeking  the  same.  The  method  pursued  by 
some  of  studying  in  a  law  ofBce  is  less  expensive, 
but  also  has  numerous  objections.  The  student 
may  have  the  use  of  books,  but  very  seldom  has 
that  definite  direction  and  assistance  which  is  so 
important  to  the  beginner.  Then,  too,  much 
valuable  time  of  the  student  is  required  by  the 
office  duties,  and  his  attention  is  frequently  di- 
verted, and  his  work  liable  to  cover  only  those 
practical  details  of  the  ordinary  practitioner's 
cases,  instead  of  embracing  the  general  prin- 
ciples of  the  science.  The  law  office  has,  how- 
ever, offered  to  many  needy  students  an  oppor- 
tunity to  enter  a  profession  that  otherwise  would 
have  been  sealed  to  them.    At  present  there  are 


HOW  TO   STUDY   LAW.  37 

more  persons  applying  than  the  law  offices  can 
accommodate.  What  shall  be  done  with  the  sur- 
plus? And  what  can  be  done  to  aid  the  thou- 
sands of  students  in  the  offices  who  are  in  need  of 
more  careful  direction  and  assistance  than  can  be 
vouchsafed  them  by  the  busy  office  lawyer  ?  The 
Home  Law  School  Series  answers  these  questions. 
By  its  assistance  the  law  school  is  duplicated  in 
every  home  of  the  land  where  a  bright  intellect 
desires  to  expand ;  it  offers  the  advantages  of  a 
skilled  instructor  to  every  one ;  it  places,  at  slight 
expense,  in  the  hands  of  its  students  the  best  and 
most  condensed  legal  literature,  obviating  the 
need  of  numerous  and  expensive  books.  All  this 
the  Home  Law  School  Series  does  at  trivial, 
nominal,  cost  to  the  student ;  the  entire  field  of 
jurisprudence  will  be  covered  in  twenty  pam- 
phlets, and  these  can  be  secured  singly  by  the 
student  at  a  cost  so  slight  as  to  be  within  the 
reach  of  all.  Thus  at  the  expense  of  a  few  dollars 
in  money,  and  the  employment  of  leisure  mo- 
ments for  a  period  not  longer  than  required  to 
complete  a  law  school  course,  a  student  may  by 
this  method  come  to  a  knowledge  of  the  law. 

Are  you  willing  to  embrace  this  opportunity? 
It  may  seem  too  practicable  and  easy  to  be  real 
and  genuine ;  or  it  may  appear  to  you  to  be  too 
prosaic  a  method  to  win  fame  and  fortune  at  the 
home  fireside  by  the  careful,  conscientious 
perusal  of  the  matter  furnished  you  by  the  Home 
Law  School  Series.    You  may  think  that  the  his- 


38  HOW  TO  STUDY  LAW. 

toric  halls  of  some  famed  institution  are  needed 
to  inspire  the  muse  which  guides  and  directs  your 
destiny ;  but  remember,  please,  that  others  have 
preceded  you  and  can  testify  to  the  efficacy  of 
similar  methods.  A  lawyer  who  has  traversed  the 
path  the  student  must  follow,  says:  "I  have 
found  that  the  best  way  to  succeed  is  to  do  the 
best  one  can  in  the  situation  in  which  one  finds 
one's  self  placed  day  by  day,  without  looking  fur- 
ther than  is  actually  necessary.  One  day's  work 
well  done  is  sure  to  have  its  influence  upon  the 
future,  and  no  amount  of  complaining  or  fault- 
finding with  present  conditions  or  future  pros- 
pects will  bring  a  man  an  inch  nearer  to  success. 
All  that  a  man  has  is  the  past  and  present.  If  he 
has  done  the  best  that  he  could  in  the  time  that 
he  has  had  to  use,  and  is  doing  the  best  that  he 
can  iti  the  present,  the  difficulties  of  the  future 
will  vanish  as  they  are  approached.  Many  of  us 
think  too  much  of  the  future  and  too  little  of  the 
past  and  present.  A  man  who  has  spent  a  year 
at  employment  which  leaves  him  none  the  better 
off  at  the  end  of  the  year,  so  far  as  his  knowledge 
and  position  in  life  are  concerned,  need  find  no 
fault  if  the  future  does  not  treat  him  well.  It  is 
a  trite  saying  that  every  man  is  the  architect  of 
his  own  fortune.  The  man  who  starts  in  early  to 
build  and  builds  every  day,  will  rear  a  more  beau- 
tiful and  more  enduring  structure  than  he  who 
begins  late  to  build,  and  who  has  injured  his 
pewers  for  good  by  neglect  in  the  past.     Much 


HOW  TO   STUDY   LAW.  39 

depends  upon  one's  surroundings,  much  more 
depends  upon  one's  self.  The  American  youth 
has  ever  before  him  the  examples  of  Abraham 
Lincoln,  James  A.  Garfield,  and  hosts  of  other 
men  who  have  been  born  amid  circumstances  and 
surroundings,  in  comparison  with  which  no  man 
can  claim  to  occupy  a  less  favorable  position.  No 
American  boy  can  read  the  life  of  Abraham  Lin- 
coln without  feeling  that  everything  is  possible 
in  this  country  to  a  man  v/ho  goes  about  seeking 
it  in  the  right  way."  We  know  some  will  say  that 
there  were  greater  chances  of  success  in  former 
times ;  that  the  times  have  changed  and  the  bril- 
liant opportunities  for  individual  success  are  all 
passed.  Not  so ;  Lincoln's  opportunity  was  to 
assist  in  stamping  out  an  injustice,  others  injus- 
tices remain,  and  will  remain  until  there  comes 
another  great,  true-hearted  hero  from  the  ranks 
of  the  people  to  awaken  mankind  to  the  new 
forms  of  oppression.  Opportunities  are  never 
wanting,  but  sometimes  the  man  is  looked  for 
long. 

Sec.  12.  AT  WHAT  AGE  SHOULD  THE 
STUDENT  TAKE  UP  LAW?— Many  persons 
ask.  What  is  the  proper  age  to  begin  the  study 
of  the  lavv^  ?  In  general  we  would  say  that  a  p*jr- 
son  is  never  too  old  or  too  young  to  study  law 
if  they  have  the  requirements  heretofore  men- 
tioned of  a  miind  capable  of  retaining  the 
thoughts  gleaned  from  the  printed  page.  "We 
know  there  is  a  prevailing  impression  in  the  wor?  ^ 


40  HOW  TO  STUDY  LAW. 

at  large  that  when  one  has  attained  the  age  of 
majority  he  is  a  graduate  from  all  schools  of  a 
primary  sort,  regardless  of  the  preparation  actu- 
ally made  for  the  struggles  of  life ;  and  that  after 
the  age  of  thirty  most  persons  consider  it  too  late 
in  life  to  think  of  changing  the  calling  they  have 
been  following,  however  dissatisfied  they  may  be 
with  their  condition.  We  take  it  that  no  extended 
argument  is  necessary  to  show  the  fallacy  as  well 
as  danger  of  such  conclusions.  One's  early  ad- 
vantages may  have  been  such  as  to  have  pre- 
cluded him  from  getting  the  most  rudimentary 
education,  yet  his  life  should  not  be  suffered  to 
be  dwarfed  when  a  slight  effort  may  remedy  this 
defect.  Men  who  were  unable  to  take  up  the 
study  of  law  at  twenty  or  thirty  should  not  hesi- 
tate to  begin  at  forty  or  even  fifty.  It  is  never 
too  late  to  add  to  one's  knowledge.  Life  is  a 
school,  and  those  who  willingly  prepare  the 
varied  lessons  assigned  will  draw  the  prizes  of 
position,  w^ealth,  happiness,  which  are  freely 
offered  to  all,  while  those  evading  and  skulking 
their  duties  in  this  school,  must  yet  continue  the 
course  to  the  end,  but  without  hope  of  securing 
any  of  the  special  prizes  awarded  to  the  mer- 
itorious. 

As  the  requirements  for  admission  to  the  bar 
quite  generally  demand  that  the  person  be  of  age, 
there  is  no  special  benefit  for  a  student  to  begin 
the  law  too  early  in  life.  But  on  the  other  side 
there  is  no  possible  objection  to  persons,  how- 


HOW  TO   STUDY    LAW.  41 

ever  old,  taking  up  the  study  of  law.  The  duties 
of  citizenship  and  the  responsibilities  of  being 
financial,  executive,  legislative,  and  judicial  head 
of  a  family  increase  with  one's  years,  and  it  is 
only  right  and  proper  that  one's  abilities  should 
develop  apace  with  these  demands. 

Sec.  13.  WOMEN  SHOULD  STUDY 
LAW. — It  has  not  been  many  years  since  women 
were  practically  excluded  from  the  learned  pro- 
fessions, and  indeed,  from  all  work  not  directly 
connected  with  the  home.  We  have  not  space 
nor  inclination  to  here  argue  the  question  of 
woman's  proper  sphere.  Suffice  it  to  say  that 
woman  has  demanded  and  secured  the  right  to 
train  for  and  follow  the  professions.  Most  law 
schools  now  welcome  women  students,  and  a 
number  of  women  lawyers  have  gained  success 
at  the  bar.  Aside  from  the  question  of  following 
the  law  as  a  means  of  gaining  a  livelihood,  which 
is  no  doubt  an  important  one  to  many  women  in 
our  day  and  age,  is  the  equally  important  one  of 
a  knowledge  of  the  law  as  a  branch  of  a  liberal 
education.  Women  may  now  contract,  enter  into 
business,  and  control  their  separate  property  as 
fully  and  freely  as  men,  and  the  same  reasons 
which  require  the  male  citizen  to  have  an  ade- 
quate knowledge  of  the  law  apply  with  added 
force  to  women.  We  are  pleased  to  note  that  a 
number  of  women  have  already  grasped  the  situa- 
tion and  have  entered  the  law  schools  to  prepare 
themselves  for  the  duties  and  responsibilities  of 


42  HOW  TO  STUDY  LAW. 

managing  their  estates.  Prominent  among  these 
women  is  the  spirited  and  noble-minded  Miss 
Helen  Gould,  now  a  student  of  Columbia  Law 
School,  whose  inherited  wealth  is  so  great  as  to 
remove,  we  should  think,  all  fears  of  having  to 
make  her  livelihood  by  the  practice  of  this  or  any 
other  profession. 

This  is  a  practical  age,  and  woman  is  a  prac- 
tical helpmeet.  She  wishes  to  do  all  she  can  in 
every  possible  sphere.  Who  will  say  her  nay? 
The  woman  stenographer,  the  woman  in  busi- 
ness, and  the  wife  of  the  lawyer  have  special 
reasons  for  possessing  a  knowledge  of  law.  The 
stenographer,  since  she  may  at  any  time  be  called 
upon  to  draft  legal  papers,  briefs,  contracts,  etc. ; 
the  woman  in  business,  since  she  has  all  the  re- 
sponsibilities of  a  man  and  must  be  as  wary  and 
careful  as  he;  and  the  lawyer's  wife,  since  she 
should  be  able  to  appreciate  her  husband's  tri- 
umphs in  the  "nice,  sharp  quillets  of  the  law," 
and  not  be  completely  isolated  from  his  intellec- 
tual existence. 

Some  women  will  ask,  Will  it  be  a  difficult  un- 
dertaking, this  study  of  the  law  ?  We  reply.  Not 
mxore  so  than  many  things  woman  has  already 
attempted  and  accomplished.  Not  nearly  so  hard 
as  numerous  things  which  are  set  down  as  being 
within  her  sphere  by  men  of  the  old  school.  We 
have  known  girls,  of  ordinary  capacity  and  train- 
ing, to  take  up  the  study  of  law  along  with  a 
class  of  several  hundred  boys,  and  without  ap- 


HOW  TO   STUDY   LAW.  43 

parent  effort  outstrip  all  but  a  few  of  their  male 
compe'citors.  The  Cyclopedia  of  Law  offers 
exceptional  advantages  to  women  students, 
as  it  permits  the  work  to  be  done  within  the 
family  circle,  and  does  not  necessitate  breaking 
home  ties,  removing  to  a  distance  to  take  up  a 
course  of  study  where  most  of  the  students  are 
men,  as  is  the  case  in  attending  the  ordinary  law 
school.  We  believe  that  many  women  have  been 
deterred  from  studying  law  because  of  the  rad- 
ically different  circumstances  in  which  they 
would  be  placed  while  pursuing  their  studies.  In 
conclusion,  we  would  say  that  we  deem  a  knowl- 
edge of  the  law  equally  important  to  women  as 
to  other  citizens  of  a  free  countrj'-,  and  that  in  the 
preceding  paragraphs,  while  we  have  used  the 
masculine  gender  only,  we  wish  it  understood 
that  both  men  and  women  were  intended. 

Sec.  14.  TO  THOSE  WHO  MAY  DESIRE 
TO  USE  THE  CYCLOPEDIA  OF  LAW.— 
We  realize  that  persons  from  various  condi- 
tions and  callings  will  ask  themselves  the 
question,  Shall  I  take  up  the  work  of  the 
Cyclopedia  of  Law?  While  we  can  only  know 
generally  as  to  your  position  we  yet  believe  you 
can  arrange  to  devote  some  time  each  day  or  week 
to  the  law  if  you  really  desire  to  study  it.  You 
may  be  a  farmer's  son  living  on  the  farm.  If  so, 
you  are  honest,  strong,  hardy,  ambitious,  and  are 
in  possession  of  every  attribute  and  requisite 
necessary  for  making  a  success  of  the  law.    All 


44 


HOW  TO  STUDY  LAW. 


you  need  is  the  opportunity  to  stud}-,  and  this  the 
Home  Law  School  Series  affords  you.  In  the 
summer  months  your  work  is  hard  and  covers 
long  hours,  and  you  will  have  little  if  any  time 
to  spare  for  study,  but  in  the  winter  months  you 
have  a  greater  amount  of  leisure  time  than  others, 
and  can  make  up  what  you  have  neglected  during 
the  summer.  Pure  air,  good  health,  and  absence 
of  the  many  things  that  serve  to  distract  the  at- 
tention of  the  city  man,  will  materially  aid  you. 
Or  you  may  be  a  clerk  in  a  store,  or  an  office,  or 
a  bank,  and  have  considerable  leisure  time  and 
only  need  the  requisite  mental  determination  to 
use  it  profitably.  We  advise  you  to  begin  the 
study  of  law  and  you  will  find  that  though  it  may 
appear  as  drudgery  at  first  the  time  will  soon 
come  when  you  will  take  a  delight  in  your  self- 
appointed  task.  You  may  be  employed  as  a 
traveling  salesman,  in  which  case  you  will  have 
the  choice  of  using  your  leisure  time  in  one  of 
two  ways ;  first,  in  pursuing  some  helpful  branch 
as  the  law,  which  may  materially  brighten  your 
prospect  of  future  success,  or  you  can  devote  it  to 
so-called  pleasurable  pursuits,  which,  far  from 
benefiting  you,  will  in  time  destroy  your  capacity 
for  doing  any  honest  work.  It  is  difficult  for  a 
person  to  profitably  use  time  which  is  so  cut  up 
as  that  of  the  traveling  salesman.  The  Home 
Law  School  Series,  however,  is  portable,  and  be- 
ing of  use  in  various  ways,  would  be  a  valuable 
companion  for  any  salesman.     Idle  hours  will 


HOW  TO   STUDY   LAW.  45 

be  found  when  its  presence  will  be  a  pleasure  as 
well  as  a  benefit.    Try  it. 

Sec.  IS.  SAME  SUBJECT  —  TEACHERS 
AND  COLLEGE  STUDENTS.— Another  class 
of  persons  who  can  profitably  and  easily  pursue 
the  study  of  law  in  the  Cyclopedia  of  Law, 
are  school  teachers  and  persons  attending  col- 
lege. Teachers,  whether  in  the  common,  gram- 
mar, or  high  schools  of  the  country,  are  ever  de- 
sirous of  becoming  better  prepared  to  fill  their 
present  positions,  as  well  as  fit  to  occupy  the 
higher  places  to  which  they  aspire.  Innumer- 
able persons  of  small  means  are  using  the  position 
of  teacher  as  a  stepping  stone  to  something 
higher.  They  aspire  to  enter  a  profession — the 
law,  medicine,  or  ministry.  Which  shall  it  be? 
It  is  not  our  duty  or  privilege  to  decide  for  you. 
But  should  your  decision  be  in  favor  of  law,  we 
can  aid  you  in  your  pursuit  of  it.  The  Cyclo- 
pedia of  Law  will  furnish  just  the  aid  that 
the  teacher  needs,  and  will  come  to  his  assistance 
at  so  slight  a  cost  that  his  savings  may  be  re- 
tained to  furnish  his  office  or  to  take  a  finishing 
year  at  some  regular  school.  Again,  if  you  are 
a  teacher  you  may  find  it  to  your  advantage  to 
accept  a  higher  position  and  accept  teaching  as 
your  life  calling.  Will  a  knowledge  of  the  law 
be  of  benefit  to  you  in  this  case  ?  Yes,  it  will  be 
one  of  the  best  and  most  useful  branches  with 
which  you  could  equip  yourself.  The  reasons 
for  our  conclusion  here  have  been  so  thoroughly 


4$  HOW  TO  STUDY  LAW. 

presented  in  the  preceding  paragraphs  that  they 
need  not  be  repeated.  College  students,  not 
lilting  themselves  for  any  particular  calling,  can 
well  use  some  of  their  leisure  hours  in  following 
the  course  in  law  as  conducted  in  the  Cyclopedia 
of  Law.  When  they  have  finished  their 
literary  education  they  will  also  have  a  knowl- 
edge of  a  profession  which  can  at  once  be  put  to 
practical  use,  and  which  in  its  acquirement  will 
have  assisted  them  in  their  other  studies.  Many 
college  students  now  read  Blackstone  or  Kent 
for  the  purpose  of  getting  advanced  standing  in 
a  law  school  when  they  are  ready  to  seek  ad- 
mittance. The  Cyclopedia  of  Law  aims  not 
only  to  give  them  this  instruction,  but  also  the 
complete  course  as  given  by  the  law  schools. 

Sec.  i6.  CLUBS  OF  STUDENTS.— The 
chief  advantages  of  the  regular  law  schools  are 
those  resulting  from  isolation  of  the  student  from 
the  every-day  cares  of  life,  and  associating  him 
with  others  who  are  pursuing  the  same  science, 
thus  creating  a  special  atmosphere,  as  it  were,  in 
which  the  student  may  imbibe  law  from  the  very 
air.  "Moot  Courts,  Quiz  Clubs,  Recitations," 
these  are  advantages  of  the  school  away  from 
home.  Most  of  these  advantages  are  afforded  by 
the  Cyclopedia  of  Law,  and  without  some 
of  the  serious  objections  which  can  be  raised  to 
the  so-called  a-dvantages  of  the  other  schools. 
We  acknowledge  the  great  benefits  to  be  derived 
from  association,  but  also  have  to  admit  that 
there  are  also  some  great  evils  that  may  result  as 


HOW  TO   STUDY   LAW.  47 

well.  Association  may  have  an  influence  in  other 
things  than  the  study  of  the  law,  as  is  sometimes 
shown.  The  publishers  of  the  Cyclopedia  of 
Law  desire  that  each  student  taking  up  the 
study  of  the  law  associate  with  himself  others  in 
his  community  desirous  of  similar  instruction  and 
establish  a  Home  Club  of  law  students,  \vhose 
habits,  morals  and  ability  is  known  and  accepta- 
ble one  to  another.  In  this  way  all  the  advan- 
tages of  the  courts,  recitations  and  clubs  of  the 
regular  law  school  can  be  had  without  any  of  the 
dangers.  While  we  advise  the  formation  of  these 
local  clubs  we  wish  it  understood  that  they  are 
not  absolutely  essential.  It  is  the  individual  stu- 
dent that  must  do  the  most  work,  and  this  work 
no  club  nor  association  can  do  for  him.  No  stu- 
dent can  be  educated  by  proxy,  he  must  "grind," 
and  grind  alone,  if  he  is  to  become  the  able  and 
proficient  adviser. 

In  concluding  these  suggestions,  meager  as 
they  are,  we  cannot  help  but  think  that  they  will 
prove  sufficient  as  an  introduction  to  the  Cyclo- 
pedia of  Lavv.  and  the  course  of  study  con- 
templated by  it.  Americans  are  too  keen-sighted 
to  have  to  be  carefully  instructed  how  to  secure 
their  own  best  and  highest  v/elfare.  We  have 
left  more  unsaid  than  we  have  said,  but  we  rest 
easy  in  the  confidence  that  the  bright  minds  that 
shall  peruse  these  pages  will  be  able  to  add  many 
more  convincing  arguments  why  each  should 
have  a  knowledge  of  the  law  which  this  series 
aims  to  furnish. 


/ 


48  HOW  TO  STUDY  LAW. 

CHAPTER  II. 
Definitions  and  Divisions, 

Sec.  17.  THE  TERM  LAW  DEFINED.— 
Law,  as  tlie  term  is  used  by  the  legal  profession, 
and  will  be  used  in  the  Cyclopedia  of  Law, 
is  defined  to  be,  "a  rule  of  civil  conduct 
prescribed  by  the  supreme  power  in  a  state,  com- 
manding what  is  right  and  prohibiting  what  is 
wrong." 

The  above  is  Blackstone's  celebrated  definition 
of  municipal  law,  the  word  "municipal"  being 
used  by  him  with  reference  to  the  laws  of  a  state 
or  nation,  and  to  distinguish  this  meaning  of  the 
word  law  from  that  broader  and  indiscriminate 
use  of  the  term  in  which  it  signifies  a  rule  of 
action,  whether  animate  or  inanimate,  and 
whether  set  by  a  human  or  superhuman  author- 
ity.   I.  Bl.  Com.  44. 

A  more  concise  definition  of  law,  as  the  term  is 
used  by  the  courts  and  in  the  science  of  jurisprU' 
dence,  is  that  given  by  Prof.  Holland,  who  de- 
fines law  to  be  "a.  general  rule  of  external  human 
action,  enforced  by  a  sovereign  political  author- 
ity."   Holland's  Jurisprudence,  Chapter  HI. 

Sec.  18.  ANALYSIS  OF  BLACKSTONE'S 
DEFINITION  OF  LAW.— The  definition  of 
municipal  law  is  thus  analyzed  and  justified  by 
its  author : 

J.  Law  is  "a  rule,"  as  it  is  something  perman- 


HOW  TO   STUDY   LAW.  49 

ent,  uniform,  and  universal,  and  not  a  mere  tran- 
sient sudden  order  from  a  superior  to  or  concern- 
ing a  particular  person.  It  is  also  a  "rule"  in  the 
sense  that  it  is  an  injunction  and  not  advice  or 
counsel,  it  must  be  followed  at  all  events,  will- 
ingly or  unwillingly.  The  obligation  is  the  result 
of  a  command  and  not  of  an  agreement. 

2.  It  is  a  rule  ''of  civil  conduct,"  since  it  refers 
only  to  the  duties  owing  by  the  citizen  to  the 
political  society  in  which  he  lives,  and  not  to 
moral  duties  which  are  the  obligations  of  natural 
or  revealed  law. 

3.  It  is  a  rule  "prescribed,"  that  is,  published 
and  promulgated,  and  not  a  mere  secret  resolution 
of  the  legislator.  It  is  requisite  that  every  law 
be  notified  to  the  people  who  are  to  obey  it.  But 
the  manner  of  the  notification  may  be  varied. 
Thus  it  may  be  notified  by  tradition  and  long 
practice,  which  supposes  a  previous  publication, 
as  in  the  case  of  the  common  law ;  by  being  read 
in  public  assemblages ;  and  by  being  written  or 
printed,  as  is  now  the  general  method.  It  is  this 
requirement  of  notification  which  makes  ex  post 
facto,  or  laws  having  a  retroactive  effect,  so  de- 
cidedly unpopular,  as  in  this  case  there  could  be 
no  possibility  of  previous  notice  of  the  law. 
Hence  all  laws  should  be  made  to  take  effect 
only  after  their  passage  and  publication. 

4.  It  is  prescribed  "by  the  supreme  power  in  a 
state"  for  the  act  of  legislating,  or  prescribing 
the  rule,  is  the  greatest  act  of  superiority  that  can 


50  HOW  TO  STUDY  LAW. 

be  exercised  by  one  being  over  another.  "Sov- 
ereignty and  legislature  are  indeed  converdble 
terms;  one  cannot  subsist  without  the  other."  It 
is  the  very  essence  of  a  law  that  it  be  made  by  the 
supreme  power. 

5.  It  is  a  rule  "commanding  what  is  right  and 
prohibiting  what  is  v/rong,"  for  by  the  law  are 
the  boundaries  of  right  and  wrong  established 
and  ascertained.  When  the  law  forbids  any 
action  it  becomes  by  reason  of  this  inhibition 
wrong  for  the  subject  to  do  the  thing  forbidden, 
and  if  the  l&w  does  not  forbid  the  act,  it  is  legally 
right  to  do  that  act,  and  this  regardless  of  moral 
sanction. 

In  commanding  the  right  and  prohibiting  the 
wrong  every  la\v  may  be  said  to  consist  of  several 
parts,  which  are :  (a)  The  declaratory  part,  by 
which  the  rights  to  be  observed  and  the  wrongs 
to  be  avoided  are  clearly  stated ;  (b)  the  directory 
part,  which  orders  the  subject  to  observe  the 
rights  and  abstain  from  the  commission  of  the 
wrongs  stated  in  the  declaratory  part;  (c)  the 
remedial  part,  in  which  a  method  is  pointed  out 
to  enforce  rights  or  redress  wrongs ;  and  (d)  the 
sanction  or  vindicatory  branch  of  the  law,  which 
designates  the  evil  or  penalty  to  be  incurred  by 
such  as  commit  any  public  wrong,  and  neglect 
their  duty.     I.  Bl.  Com.  44-54. 

Sec.  19.  COMPREHENSIVE  MEANING 
OF  THE  WORD  LAW.— In  its  most  compre- 
hensive sense,  the  term  law  has  been  applied  to 


HOW  TO   STUDY   LAW.  51 

designate  the  rules  of  external  nature,  and  its 
meaning  has  been  rendered  ambiguous,  because 
it  is  used  indifferently  lo  describe  ihe  order  which 
pervades  the  universe,  the  observed  regular  phe- 
nomena of  nature,  the  intangible  moral  restraints 
upon  human  conduct,  as  well  as  those  definite 
rules  of  human  action  prescribed  by  some  polit- 
ical superior.  But  to  the  jurisprudent  the  term 
has  come  to  have  only  this  latter  and  limited 
sense,  when  used  without  a  qualifying  or  ex- 
planatory word. 

The  older  writers,  as  Blackstone,  were  prone 
to  find  a  higher  sanction  for  laws  than  that  of 
their  being  prescribed  by  the  sovereign  political 
authority.  They  regarded  man  as  a  creature,  and 
hence  subject  to  the  laws  of  his  Creator.  Man's 
free  will  being  restrained  and  moJified  by  the 
''immutable  laws  of  human  nature,''  and  by  his 
reason  rendered  capable  of  discovering  the  pur- 
port of  those  laws.  Thus  were  the  laws  estab- 
lished by  man  for  his  social  regulation,  sought 
to  be  connected  with  the  "eternal  and  immutable 
laws  of  good  and  evil,  to  which  the  Creator  him- 
self in  all  his  dispensations  conforms."  Human 
reason,  rightly  exerted,  discovers  the  laws  which 
the  Creator  has  set,  as  the  principles,  "that  we 
should  live  honestly,  should  hurt  nobody,  and 
should  render  to  every  one  his  due,"  the  funda- 
mental precepts  of  the  law  laid  down  by  Justinian. 
Again,  according  to  these  writers,  the  Creator  in 
his  infinite  goodness  has  so  regulated  his  crea- 


52  HOW  TO  STUDY  LAW. 

ture,  man,  "that  we  should  want  no  other 
prompter  to  inquire  after  and  pursue  the  rule  of 
right,  but  only  our  own  self-love,  that  universal 
principle  of  action,"  and  the  rule  of  obedience  is 
reduced  to  the  one  paternal  precept,  "that  man 
should  pursue  his  own  true  and  substantial  hap- 
piness." In  addition  to  the  laws  discovered  by 
reason,  are  those  revealed  directly  by  the  Creator, 
and  to  be  "found  only  in  the  holy  scriptures." 

"Upon  these  two  foundations,"  says  Black- 
stone,  "the  law  of  nature  and  the  law  of  revela- 
tion, depend  all  human  laws ;  that  is  to  say,  no 
human  laws  should  be  suffered  to  contradict 
these."  Thus,  according  to  Blackstone,  human 
laws,  except  in  a  number  of  indifferent  points  in 
which  the  divine  and  natural  law  leave  man  at  his 
own  liberty,  are  "only  declaratory  of,  and  act  in 
subordination  to,  the  former."  And  he  concludes, 
"No  human  laws  are  of  any  validity,  if  contrary  to 
this  natural  law.  and  such  of  them  as  are  valid 
derive  all  their  force  and  all  their  authority,  medi- 
ately or  immediately,  from  this  original."  This 
conclusion,  as  will  be  seen,  is  not  in  accord  with 
his  definition  of  municipal  law,  save  on  the  sup- 
position that  all  legislation  is  sanctioned  by  nat- 
ural law. 

Sec.  20.  SAME  SUBJECT  — A  LATER 
VIEW. — A  later  school  of  jurisprudents  separate 
positive  or  municipal  law  entirely  from  the  so- 
called  natural  or  revealed  law.  Their  reasoning 
is,  that  Avhile  man  is  a  mvsterv  to  himself,  ex- 


HOW   TO    STUDY    LAW.  53 

ternal  nature  is  a  greater  one,  and  he  seeks  to 
explain  the  more,  by  the  less  obscure.     "As  he 
governs  his  flocks  and  his  family,  so  he  supposes 
that  unseen  beings  govern  the  waters  and  the 
winds.    The  greater  the  regularity  in  nature,  the 
fewer  such  beings  does  he  suppose  to  be  at  work 
in  her ;  till  at  length  he  rises  to  the  conception  of 
one  great  being  whose  law's  are  obeyed  by  the 
whole  universe,  or  having  gotten  the  idea  of  the 
universe  he  holds  that  and  not  a  supreme  ruler 
and  law-giver."  Man  believes  himself  acquainted 
either  by  experience  or  revelation  with  certain 
rules  intended  for  his  guidance,  and  hence  the 
terms,  laws  of  Nature,  of  God,  of  beauty,  of  mor- 
ality, etc.,  which  he  applies  to  observed  relations 
and  arrangements  of  external  objects.    So  in  the 
theoretical  sciences;    the  term  law  denotes  the 
abstract  idea  of  the  causes  of  phenomena ;  in  the 
physical  sciences  law  denotes  the  method  of  the 
phenomena  of  the  universe ;  and  in  the  practical 
sciences  it  signifies  a  rule  of  human  action  which 
is  its  usual  and  proper  meaning.    The  practical 
sciences  are  divided  into  (i)  Ethic,  which  is  the 
science  of  conformity  of  human  character  to  a 
type,  and  looks  to  duties  binding  on  the  con- 
science for  which  external  legislation  is  impossi- 
ble ;   and  (2)  Nomology,  the  science  of  the  con- 
formity of  human  actions  to  rules,  which  looks  to 
the  rights  which  are  the  elements  of  social  life. 

Another  definition  of  Nomology  is  "the  science 
of  the  totality  of  the  laws  for  which  external  leg- 


54  HOW  TO  STUDY  LAW. 

islation  is  possible."  Nomological  sciences  are 
divided  into  (i)  those  whose  rules  are  enforced 
by  an  indeterminate  authority,  as  so-called  moral 
laws,  laws  of  fashion,  chivalry,  etiquette,  and  all 
conventional  laws,  and  (2)  those  whose  rules  are 
enforced  by  a  determinate  authority,  as  all  statute 
laws,  and  Other  regulations  of  a  political  sov- 
ereign. It  is  these  latter  laws  which  are  the  sole 
concern  of  the  jurist. 

"The  jurist  is  not  obliged  to  decide  as  to  the 
essential  quality  of  virtue  in  itself,  or  whether  it 
be  conducive  to  utility,  or  is  in  accordance  with 
nature ;  nor  need  he  profess  belief  or  disbelief, 
either  in  an  innate  moral  sense  or  in  a  categorical 
imperative  of  the  practical  reason.  The  business 
of  the  jurist  is,  first,  to  accept  as  an  undoubted 
fact  the  existence  of  moral  principles  in  the  world, 
differing  in  many  particulars  in  different  nations 
and  at  different  epochs,  but  having  certain  broad 
resemblances ;  second,  to  observe  the  sort  of 
sanction  by  which  these  principles  are  made 
effective."  Holland's  Jurisprudence,  Chapters  II. 
and  III. 

In  this  view  of  the  subject  it  appears  that  in- 
stead of  human  laws  being  derived  from  and 
based  upon  divine  or  natural  law,  it  was  by  the 
gradual  expansion  of  municipal  and  positive  law 
that  man  has  come  to  his  present  high  conception 
of  moral  and  natural  law.  The  question  raised 
by  these  two  view^s — Is,  or  is  not,  law  an  inborn 
conception,  drawn  by  the  process  of  reasoning 


HOW  TO   STUDY   LAW.  55 

from  the  immutable  and  eternal  reservoir  of  di- 
vine justice? — cannot  be  settled  here.  There  are 
two  schools  of  thought  on  this  question,  and  it  is 
the  student's  privilege  to  choose  his  side.  The 
question  is  not  of  such  importance  as  to  demand 
immediate  solution.  Whatever  may  be  the  true 
theory  it  still  remains  that  municipal  law  is  pre- 
scribed by  the  supreme  power  in  a  state,  and  its 
rules  are  enforced  by  the  same  power. 

"Rights  are  and  can  be  real,  only  as  they  are 
established  in  the  civil  and  political  organization. 
They  are  slowly  and  only  with  toil  and  endeavor 
enacted  in  laws  and  molded  in  institutions.    It  is 
only  with  care  and  steadiness  and  tenacity  of 
purpose  that  those  guaranties  are  forged  which 
are  the  securance  of  freedom,  and  they  are  to  be 
clinched  and  riveted  to  be  strong    for    defense 
and  against  assault.     The  rhetoric  which  holds 
the   loftier   abstract   conception   avails  nothing, 
until  in  the  constructive  grasp  and  tentative  skill 
of  those  who  apprehend  the  conditions  of  posi- 
tive rights,  it  is  shaped  and  formed  in  the  process 
of  the  state."    E.  Mulford,  "The  Nation,"  p.  83. 
Sec.  21.    WHAT  LAWS  WE  ARE  TO  CON- 
SIDER.— It  is  only  the  laws  for  the  control  of 
human  action,  set  by  a  definite  human  authority, 
which  must  be  a  sovereign  authority,  that  we  are 
to  consider.     So  that  a  law  to  the  jurisprudent 
is  a  general  rule  of  human  action,  taking  cog- 
nizance only  of  external  acts,  enforced  by  a  de- 
terminate authority,  which    authority    is     that 


S6  HOW  TO  STUDY  LAW. 

which  is  paramount  in  a  political  society.  Hol- 
land's Jurisprudence,  Ch.  IV. 

Thus  we  exclude  from  consideration  the  prin- 
ciples or  sentiments  of  right  and  justice  which 
are  termed  laws  of  Nature,  and  which  have  been 
designated  as  "The  unwritten  and  steadfast  cus- 
toms of  the  gods."  "In  their  widest  sense,"  says 
Prof.  Holland,  "the  law  of  Nature  includes  ani- 
mal instincts,  regulating  the  care  of  the  young 
and  the  union  of  sexes ;  in  their  narrower  sense 
they  are  the  lus  Gentium  of  the  Romans,  that 
is,  a  body  of  principles  found  in  all  nations  which 
point  to  the  similiarity  of  needs  and  ideas  of  all 
peoples."  It  is  evident  that  these  indefinite  and 
general  ideas,  deep-rooted  as  they  are,  cannot  be 
termed  laws  in  the  same  sense  as  those  positive 
directions  of  the  sovereign  power  of  a  state. 

We  also  exclude  from  our  consideration  all 
those  rules  of  indeterminate  and  indefinite  au- 
thority, as  moral  rules,  rules  of  fashion,  etiquette, 
etc.,  which,  though  binding  in  some  instances, 
are  not  enforced  by  a  determinate  superior ;  and 
also  those  rules  enforced  by  a  determinate  au- 
thority, if  the  authority  is  superhuman  or  politic- 
ally subordinate.  Hence  we  have  left  the  field  of 
positive  or  municipal  law — being  those  general 
rules  of  external  human  action  enforced  by  the 
sovereign  political  authority  in  a  state. 

Sec.  22.    INFLUENCE  OF  THE  LAW  OF 

NATURE. — The  influence  of  the  so-called  law 
of  Nature  is  such  that  where  the  positive  law  has 


HOW  TO   STUDY    LAW.  57 

made  no  provision  the  natural  ideas  of  justice, 
equity  and  good  conscience  are  used  to  determine 
the  question  in  dispute.  Thus  the  law  of  nature 
is  the  scaffolding  upon  which  Gentilus  and 
Grotius  built  up  the  science  of  International  Law, 
or  the  usages  which  regulate  the  intercourse  of 
nations.  And  this  law  of  nature  or  natural  equity 
has  been  called  in  to  help  modify  the  rigor  of 
the  common  law,  and  established  what  we  now 
term  Equity.     Holland's  Jur.,  Ch.  III. 

The  law  of  nature,  or  the  divine  law,  is  also  re- 
sponsible for  the  division  made  by  Blackstone  of 
mala  in  se,  and  mala  prohibita.  Crimes  and 
misdemeanors  forbidden  by  the  natural  or  divine 
law,  as  well  as  positive  law,  are  termed  mala  in 
se  (evils  in  themselves),  while  things  not  forbid- 
den by  divine  law  and  yet  proscribed  by  positive 
law  are  called  mala  prohibita  (evils  prohibited). 

So  far  we  have  made  use  of  the  word  "posi- 
tive" or  "municipal"  to  distinguish  law  as  a  rule 
of  civil  conduct  from  its  more  general  uses  ;  here- 
after we  shall  drop  these  words  and  use  simply 
the  term  law,  with  the  same  meaning. 

Sec.  23.  POLITICAL  ORGANIZATION 
PRECEDES  LAW.— "Morality  may  precede, 
but  law  must  follow,  the  organization  of  a  polit- 
ical society."    Holland's  Jur.,  Ch.  IV, 

The  student  who  has  followed  the  foregoing 
reasoning,  which  separates  law  from  the  meta- 
physical rules  to  which  it  has  been  inacurately 
applied,  and  sees  that  it  is  only  to  the  decrees  of 


58  HOW  TO  STUDY  LAW. 

a  sovereign  political  authority  that  the  ten-n  ap- 
plies, will  also  see  that  there  can  be  no  law  in 
this  sense  without  previous  political  organization. 
There  may  have  been  principles  of  right  more 
or  less  authoritative,  but  they  are  not  laws  until 
so  declared  by  a  law-making  power. 

Here  again  there  is  a  division  of  opinion 
among  jurisprudents,  the  German  or  Historical 
school,  of  which  Savigny  is  a  leading  light,  re- 
gards the  political  organization  or  state  as  the 
highest  stage  in  the  procreation  of  law,  while 
the  Au£;tinian  school,  followed  by  Prof.  Holland, 
regards  the  formation  of  the  state  as  the  in- 
cipiency  of  law. 

Sec.  24.  DEVELOPMENT  OF  THE  LAW. 
— While  the  term  law,  always  means  an  estab- 
lished rule,  it  does  not  follow  that  these  rules 
are  fixed  and  immutable.  In  fact  one  of  the  dif- 
ficulties encountered  in  the  study  of  the  law,  and 
one  which  arises  from  its  very  nature,  is  that  the 
law  is  continually  changing ;  adapting  itself  to 
the  needs  and  situations  of  the  people  and  things 
which  it  regulates.  Thus,  as  we  have  heard  Prof. 
Bigelow  remark,  the  continued  relations  of 
things  will  create  a  custom,  and  the  custom  will 
come  to  be  enacted  into  a  law  and  in  turn  regu- 
late the  relations  which  brought  it  into  existence. 
But  law  only  relates  to  binding  rules.  A  J.hing 
which  morally  should  be,  and  in  time  may  be,  is 
not  a  law  until  it  is  recognized  and  enforced. 
"Conscience  might  inform  vou  what  the  moral 


HOW  TO   STUDY   LAW.  59 

law  is,  and  what  the  municipal  law  ought  to  be ; 
but  it  might  greatly  mislead  you  as  to  what  the 
municipal  law  actually  is."  Walker's  Am. 
Law.  5. 

When  the  question  arises  what  is  the  law  in  a 
matter,  we  cannot  reason  it  out  abstractly;  we 
have  to  ascertain  who  has  the  law-making  power 
in  such  a  matter,  and  what  that  power  has  or- 
dained in  reference  thereto.  To  determine  this 
the  lawyer  must  search  the  records  of  the  statute 
law,  or  if  a  question  of  construction,  the  pre- 
cedents, or  authoritative  decisions. 

While  law  is  thus  arbitrary  it  is  yet  progres- 
sive and  deserves  those  high  encomiums  which 
from  the  first  have  been  lavished  upon  it  by  its 
most  careful  students.  Edmund  Burke  called  it 
"the  pride  of  the  human  intellect,  and  the  col- 
lected wisdom  of  ages  ;  combining  the  principles 
of  original  justice  with  the  boundless  variety  of 
human  concerns."  We  have  already  seen  Sec.  7, 
with  what  high  favor  Blackstone  regards  the 
science,  while  Professor  Walker  terms  it  "the 
grand  regulator  of  human  affairs."  Without  law 
there  would  be  a  constant  chaos  in  human  so- 
ciety, which  is  best  described  by  the  fearful  name, 
anarchy.  We  believe  all  the  encomiums  con- 
ferred upon  the  law  as  a  science  are  just  and 
appropriate.  The  law  is  progressive ;  it  loses 
nothmg  helpful ;  it  seeks  to  retain  nothing  hurt- 
ful ;  k  extends  in  an  unbroken,  expanding  chain 
from  the  remotest  antiquity  to  the  present  mo- 


6o  HOW  TO  STUDY   LAW. 

ment,  governing  the  momentous  affairs  of  na- 
tions and  the  trifling  details  of  every-day  life 
among  individuals  with  equal  exactitude  and 
wisdom ;  it  indicates  as  well  as  preserves  the  de- 
velopment of  the  past,  and  points  out  the  path  of 
our  future  progress. 

Sec.  25.  POLITICAL  ORGANIZATIONS 
DESCRIBED.— We  have  seen  that  law  results 
from  the  action  of  a  political  sovereignty  or  the 
supreme  power  in 'a  state.  How  have  these  po- 
litical organizations  come  to  exist?  From  the 
earliest  recorded  history  we  learn  that  mankind 
was  divided  into  groups  or  tribes  possessing  a 
common  language,  common  customs  and  char- 
acteristics. We  know  that  these  groups  ex- 
panded, developed,  and  colonized  until  they  came 
to  occupy  a  great  extent  of  territory.  That  in 
some  instances  a  group,  would  establish  a  gov- 
ernment within  itself,  and  thus  the  political  unit 
would  be  composed  of  a  single  people  who  would 
also  be  united  by  the  ties  of  ancestry,  language 
and  customs.  In  other  instances  several  groups 
vv-9uld  unite  in  the  establishment  of  a  common 
government,  or  by  conquest  one  group  would 
acquire  the  right  to  govern  other  groups,  in 
which  cases  several  tribes  or  peoples,  differing 
greatly,  might  be  subject  to  the  same  political 
authority. 

Sec.  26.  SAME  SUBJECT  — A  PEOPLE 
DEFINED. — A  people  is  defined  to  be  a  large 
number  of  human  beings  united  by  a  common 


HOW  TO   STUDY   LAW.  6i 

language,  and  by  similar  customs  and  opinions, 
resulting  usually  from  common  ancestry,  religion 
and  historical  circumstances.  Holland's  Jur., 
Ch.  IV. 

Sec.  27.  SAME  SUBJECT— A  STATE  DE- 
FINED.— A  state  is  the  whole  people  of  one 
body  politic,  and  has  been  defined  by  the  United 
States  Supreme  Court  to  be  "a  body  of  free  per- 
sons, united  together  for  the  common  benefit,  to 
enjoy  peaceably  what  is  their  own,  and  to  do 
justice  to  others."  Chisholm  v.  Georgia,  2 
Dall.  456. 

Prof.  Woolsey's  definition  is,  "A  state  is  a 
community  of  persons  living  within  certain  limits 
of  territory,  under  a  permanent  organization, 
which  aims  to  secure  the  prevalence  of  justice  by 
self-imposed  law.  Woolsey,  Introd.  to  Inter. 
Law,  Sec.  36. 

A  band  of  robbers  or  pirates,  though  inhabit- 
ing fixed  territory  and  permanently  organized, 
would  not  constitute  a  state  within  either  of  these 
definitions. 

In  the  organic  state  there  are  two  parts,  one 
of  which  is  sovereign  and  the  other  subject ;  the 
Mali  of  the  majority,  or  of  an  ascertained  class  in 
a  state,  prevailing  against  any  of  their  number 
who  oppose  it,  constitutes  the  sovereign  author- 
ity, while  the  persons  subject  to  this  power  when 
exercised,  including  the  majority,  or  the  per- 
sons whose  will  constitute  the  sovereignty,  are 
the  subject  part. 


62  HOW  TO  sraDY  LAW. 

Sec.  28.  ORIGIN  OF  STATES.— The 
Greeks  supposed  state  to  be  of  superhuman 
origin.  From  Grotius  and  Rousseau,  writers 
of  the  seventeenth  and  eighteenth  centuries,  came 
the  idea  of  the  Social  Compact  or  Contract,  by 
which  people  were  regarded  as  having  met  and 
voluntarily  formed  their  political  organization. 
Hobbes,  a  writer  of  the  seventeenth  century, 
called  a  "City"  one  person,  whose  will,  by  the 
compact  of  many  men,  is  to  be  received  for  the 
will  of  them  all.  Herbert  Spencer  finds  the  state 
to  be  a  mere  growth,  the  same  as  organisms  have 
developed  from  lower  to  higher  species.  The 
formation  of  the  United  States  into  a  Federal 
State  was  certainly  by  means  of  a  compact  agreed 
upon  by  the  delegates  of  the  people.  Blackstone 
points  out  that  "The  only  true  and  natural 
foundations  of  society  are  the  wants  and  fears  of 
individuals."  And  while  he  makes  light  of  the 
Social  Contract  theory,  by  which  men,  actuated 
by  a  sense  of  their  weaknesses,  met  and  estab- 
lished governments  for  their  protection,  he  ac- 
cepts the  family  as  the  first  political  unit,  and 
acknowledges  it  to  have  been  held  together  by 
man's  sense  of  weakness,  and  developed  and  ex- 
panded from  the  necessity  of  union.  "And  this," 
says  Blackstone,  "is  what  we  mean  by  the  orig- 
inal contract  of  society,  which,  though  perhaps 
in  no  instance  it  has  ever  been  formally  ex- 
pressed at  the  first  institution  of  a  state,  yet  in 
nature  and  reason  must  always  be  understood 


HOW  TO   STUDY   LAW.  63 

and  implied  in  the  very  act  of  associating  to- 
gether, namely,  that  the  whole  should  protect 
all  its  parts,  and  that  every  part  should  pay  obedi- 
ence to  the  will  of  the  whole,  or,  in  other  words, 
that  the  community  should  guard  the  rights  of 
each  individual,  and  that  in  return  for  this  pro- 
tection each  individual  should  submit  to  the  laws 
of  the  community,  without  which  submission  of 
all  it  was  impossible  that  protection  could  be  cer- 
tainly extended  to  any."    I.  Bl.  Com.  47,  48. 

Families,  or  groups  of  persons  once  formed 
for  mutual  benefit  and  protection,  have  at  the 
same  time  constituted  a  political  organization  or 
government  and  nominated  expressly  or  im- 
pliedly some  supreme  authority  whose  rules  all 
are  to  obey.  This  supreme  authority  is  neces- 
sary to  all  forms  of  government  and  is  called 
sovereignty. 

Sec.  29.  KINDS  OF  GOVERNMENTS.— 
By  Government  is  meant  the  system  of  polity  or 
body  of  principles  and  rules  by  which  the  affairs 
of  a  state  are  conducted.  Governments  are 
almost  as  numerous  in  variety  as  there  are  states 
to  have  governments.  The  chief  distinctions  re- 
late to  the  residence  of  the  sovereign  power,  and 
in  this  regard  the  older  writers  have  divided 
tViem  into  three  divisions  which  are  mentioned 
by  Blackstone.    These  are : 

First.  A  Monarchy,  in  which  the  sovereignty 
resides  in  a  single  person. 

Second.    An  Aristocracy,  where  the  sovereign 


64  HOW  TO  STUDY  LAW. 

power  is  lodged  in  the  hands  of  a  select  body  of 
persons  or  council. 

Third.  A  Democracy,  where  the  sovereignty 
is  exercised  in  an  aggregate  assembly  consisting 
of  all  the  citizens  of  a  community. 

These  three  forms  are  said  to  cover  all  the 
other  forms  of  government,  which  are  either  cor- 
ruptions of  or  reducible  to  these.    I.  Bl.  Com.  49. 

Sec.  30.  SAME  SUBJECT  — REPUBLI- 
CAN GOVERNMENT.— A  Republic  differs 
from  each  of  the  governments  above  described 
in  theory,  though  it  resembles  an  aristocracy  in 
practice.  A  republic  was  defined  by  James  Madi- 
son to  be  "A  government  which  derives  all  its 
powers  directly  or  indirectly  from  the  great  body 
of  the  people,  and  is  administered  by  persons 
holding  their  offices  during  pleasure,  for  a  limited 
period,  or  during  good  behavior."  The  Feder- 
alist, No.  39.  The  sovereignty,  in  a  republic,  re- 
sides in  the  whole  body  of  the  citizens,  and  in 
this  it  resembles  a  democracy,  but  instead  of 
being  exercised  by  the  people  directly  it  is  dele- 
gated to  certain  persons  selected  by  the  majority 
of  the  citizens  entitled  to  vote. 

A  republic  is  sometimes  called  a  constitu- 
tional democracy,  in  distinction  from  a  pure  de- 
mocracy. The  constitution  directing  the  man- 
ner in  which  the  people  shall  proceed  to  exercise 
their  sovereignty.    Calhoun's  Works,  I.,  185. 

A  republican  government,  and  especially  our 
own,  can  lay  claim  to  being  a  sort  of  a  mixed 


HOW  TO   STUDY    LAW.  65 

government,  and  partaking  of  the  best  features 
of  the  other  three.  This  is  the  sort  of  govern- 
ment extolled  by  Blackstone  when  he  commends 
the  Enghsh  system  of  king,  lords,  and  com- 
mons as  being  the  best  form  of  government.  Our 
own  republican  government  was  modeled  after 
that  of  England ;  we  have  the  single  executive, 
but  elective  instead  of  hereditary  ;  the  legislative 
power  is  intrusted  to  two  houses,  the  one  more 
numerous  and  nearer  to  the  people  than  the 
other ;  and  we  have  added  the  judicial  to  balance 
the  other  two.  Thus  we  have,  as  Blackstone 
claims  for  the  English  system,  by  a  single  execu- 
tive, the  strength  and  dispatch  found  in  the  most 
absolute  monarchy ;  in  the  Senate  we  are  sup- 
posed to  have  an  assembly  of  persons  selected  for 
their  wealth,  influence,  wisdom,  etc.,  and  con- 
stituting an  eminently  aristocratic  body ;  while 
the  lower  house  of  Congress  are  "freely  chosen 
by  the  people  from  among  themselves,"  which 
makes  it  democratic  in  nature.  I.  Bl.  Com., 
50,  51- 

Sec.  31.  WHAT  IS  THE  BEST  FORM  OF 
GOVERNMENT?— We  should  not,  perhaps, 
at  this  time  raise  the  question.  What  is  the  best 
form  of  government  ?  We  aim  at  present  simply 
to  give  a  brief  outline  of  political  history  to  en- 
able the  student  to  understand  our  own  institu- 
tions and  laws,  which  are  to  be  taken  up  more 
fully  under  the  subject.  Constitutional  Law,  in 
the  next  number  of    the    Home  Law    School 


66  HOW  TO  STUDY  LAW. 

Series.  But  the  question  is  so  important  to  us  in 
America,  as  we  claim  to  be  making  an  experi- 
ment in  government,  that  we  will  not  pass  the 
opportunity.  Blackstone,  who  was  called  to  ex- 
pound the  English  laws,  found  in  the  course  of 
his  study  that  the  limited  monarchy  of  England 
was  the  best  government.  Many  American 
writers,  emulating  Blackstone's  example,  have 
in  writing  of  our  laws  claimed  our  government 
to  be  the  best  possible.  We  fully  appreciate  the 
merits  of  our  American  government.  But  as  a 
student  of  the  law  we  should  regard  all  govern- 
ments not  as  the  best,  but  rather  as  progressive 
experiments,  tending  to  approach  the  highest 
ideals  of  the  members  of  the  body  politic.  Our 
government  has  many  advantages  over  all  that 
have  preceded  it,  and  our  people  have  many  polit- 
ical ideals  unknown  to  the  peoples  of  the  past. 
These  ideals  of  our  people  are  constantly  expand- 
ing and  developing  and  it  is  the  province  of  the 
"best  government"  to  constantly  approach  and 
realize  these  political  aspirations  of  mankind. 

The  best  government  should,  like  the  bark  that 
surrounds  the  growing  tree,  expand  and  grow  as 
the  tree  grows,  then  it  will  not  be  cracked  or 
burst  asunder  by  the  force  which  it  seeks  to  en- 
close and  regulate.  A  government  which  does 
not  grow,  and  cannot  be  overthrown  by  the  peo- 
ple, will  dwarf  and  blast  the  races  that  have  the 
misfortune  to  be  subject  thereto. 

We  are  safe  in  saying  that  no  existing  govern- 


HOW  TO   STUDY   LAW.  67 

ment  answers  the  definition  given  for  either  a 
Monarchy,  an  Aristocracy,  or  a  Democracy.  All 
are  now  mixed  governments,  each  seeking  to 
partake  of  the  features  best  suited  to  its  citizens. 
The  English  government,  from  which  ours  is 
largely  derived,  began  as  an  absolute  monarchy, 
but  from  its  earliest  dawn  it  had  to  combat  the 
rising  spirit  of  democracy.  The  spirit  grew  and 
monarchy  yielded ;  in  fact,  the  whole  course  of 
English  history  is  marked  by  the  concessions 
granted  democracy.  This  change  was  slow ; 
monarchy  resisted,  was  overthrown,  and  re-estab- 
lished with  more  concessions.  Growing  democ- 
racy was  transplanted  to  America,  and  soon  blos- 
somed and  bore  fruit.  The  fruit  was  the  Declar- 
ation of  Independence,  and  a  government  in 
which  the  people  were  recognized  and  declared 
to  be  the  possessors  of  the  political  sovereignty. 
Has  democracy  finished?  and  should  it  go  no 
further  ?  No ;  democracy,  we  believe,  to  be  the 
most  permanent  factor  in  civilization  and  the 
strongest  force  of  our  time.  The  untrammeled 
sway  of  the  people  is  now  the  master  force  of  the 
world,  and  as  the  years  proceed  this  power  must 
overthrow  all  tyranny,  all  despotism,  and  all 
monopoly  of  social,  industrial  and  political  func- 
tions. 

It  is  not  practicable  for  the  people  of  a  great 
and  populous  state  to  meet  in  assemblages  and 
enact  measures  for  their  common  good ;  neither 
is  it  practicable  for  a  monarch  to  exercise  all  the 


68  HOW  TO  STUDY  LAW. 

power  necessary  to  govern  such  a  state ;  but  it 
is  possible  and  practicable  for  intelligent  citizens 
of  the  greatest  of  nations  to  meet  at  stated  in- 
tervals and  vote  by  the  referendum  and  initiative 
upon  the  laws  they  deem  necessary  for  their  wel- 
fare, and  it  is  also  possible  for  a  monarch  or  an 
aristocratic  class  to  enact  measures  that  will 
tyrannize  and  despoil  the  masses  of  the  greatest 
nation.  Hence  we  conclude  the  best  government 
is  that  which  conforms  most  nearly  to  the  require- 
ments of  a  progressive  and  aspiring  people. 

J  Sec.  32.  SOURCES  OF  THE  LAW.— By 
sources  of  the  law  we  do  not  wish  to  be  under- 
stood as  meaning  the  depositories  in  which  the 
law  is  recorded,  as  the  statutes,  reports  and 
treatises ;  nor  do  we  mean  the  authority  which 
gives  them  the  sanction  of  law,  but  we  mean  to 
discuss  the  channels  through  which  principles 
have  come  which  are  now  recognized  and  en- 
forced by  a  sovereign  political  authority.  It  is 
to  be  understood  tliat  these  principles  and  rules 
are  not  laws  in  their  earliest  stages,  any  more  than 
is  the  brook,  which  is  the  source  of  the  river,  en- 
titled to  be  called  a  river  until  it  has  reached  a 
certain  definite  stage  of  growth  and  recognition. 
I.  Custom  as  a  Source  of  Law.  A  custom  may 
result  from  the  moral  sense  of  mankind  or  from 
mere  convenience.  It  develops  as  a  path  is 
formed  across  a  common ;  one  person  passes 
across,  others  follow,  and  gradually  a  regular 
pathway  is  formed,  which  is  easier  to  be  followed 


HOW  TO   STUDY   LAW.  69 

than  avoided.  These  customs  may  be  quite  gen- 
eral in  extent  or  confined  to  locally  limited  com- 
munities. When  they  have  become  fixed  and 
notorious  the  sovereignty  in  the  state  may  see 
fit  to  recognize  them,  and  they  are  thus  raised  to 
the  dignity  of  laws.  The  courts  sometimes  give 
validity  retrospectively  to  good  customs,  and  the 
historical  school  of  the  origin  of  law  claims  this 
as  an  example  w^iere  law  arises  from  the  intelli- 
gence of  the  people  without  an  arbitrary  political 
authority.  But  it  is  clear  that  the  custom  is  only 
a  law  when  passed  upon  by  the  sovereignty,  and 
if  this  action  is  given  a  retrospective  effect  we 
do  not  see  that  it  changes  the  conclusion.  Hol- 
land's Jur.,  Ch.  V. 

2.  Religion,  or  the  Revealed  Law.  It  was 
formerly  supposed  that  Christianity  was  a  part 
of  the  law  of  England.  This  is  now  questioned. 
In  America  Christianity  has  never  been  claimed 
to  be  a  part  of  the  law  of  the  land.  We  have  no 
union  of  church  and  state,  nor  has  our  govern- 
ment ever  been  vested  with  authority  to  enforce 
any  religious  observance  simply  because  it  is  re- 
ligious. Of  course,  it  is  no  objection,  but,  on  the 
contrary,  it  is  a  high  recommendation  to  a  legis- 
lative enactment-,  based  upon  justice  or  public 
policy,  that  it  is  found  to  coincide  with  the  pre- 
cepts of  a  pure  religion ;  nevertheless,  the  power 
to  make  the  law  rests  in  the  legislative  control 
over  things  temporal  and  not  over  things  spir- 
itual.   Bloom  v.  Richards,  2  Ohio  St.  387. 


70  HOW  TO  STUDY  LAW. 

Thus  religion  may  influence  and  assist  in  the 
development  of  the  law,  but  the  dogmas  of  re- 
ligion are  in  no  sense  laws  which  will  be  enforced. 
This  is  well  stated  by  the  court  in  Bloom  v. 
Richards,  just  cited,  where  it  is  said,  "The  statute 
prohibiting  common  labor  on  the  Sabbath  could 
not  stand  for  a  moment  as  the  law  of  Ohio,  if  its 
sole  foundation  was  the  Christian  duty  of  keep- 
ing that  day  holy,  and  its  sole  motive  to  enforce 
the  observance  of  that  duty.  It  is  to  be  regarded 
as  a  mere  municipal  or  police  regulation,  whos^? 
validity  is  neither  strengthened  nor  weakened  by 
the  fact  that  the  day  of  rest  it  enjoins  is  the  Sab- 
bath day."* 

*Lest  some  might  through  mistaken  zeal  misunder- 
stand the  true  reason  for  the  separation  of  law  from 
religion,  we  append  the  following  clear  reasoning  from 
Professor  Walker:  "They  commit  an  egregious  error 
who  consider  jurisprudence  as  looking  forward  into 
eternity.  It  begins  and  ends  with  this  world.  It  re- 
gards men  only  as  members  of  civil  society.  It  assists 
to  conduct  them  from  the  cradle  to  the  grave,  as  social 
beings;  and  there  it  leaves  them  to  their  final  Judge.  I 
would  that  this  attribute  of  the  law  were  more  generally 
appreciated.  *  *  *  Religion  and  morality  embrace 
both  time  and  eternity  in  their  mighty  grasp;  but  human 
laws  reach  not  beyond  the  boundaries  of  time.  As  im- 
mortal bemgs  they  leave  men  to  their  conscience  and 
their  God.  And  though  this  consideration  may  seem,  at 
first  view,  to  detract  from  their  dignity,  I  rejoice  at  it 
as  a  consequence  of  our  absolute  moral  freedom.  I  re- 
joice that  in  this  country  at  least  government  dares  not 
interfere  between  man  and  his  Creator.  I  know  no 
higher  subject  of  congratulation  than  the  fact  that  we 
have  confined  our  legislatures  to  their  proper  sphere; 


HOW  TO   STUDY   LAW.  n 

3.  Adjudication  as  a  Source  of  Law.  Adju- 
dication, or  so-called  judge-made  law,  arises 
from  the  fact  that  courts  have  the  power  to  in- 
terpret and  apply  the  law  to  the  cases  which  come 
before  them.  In  Europe  the  decisions  of  the 
court  in  applying  the  law  to  the  facts  are  not 
binding  or  used  as  authorities  in  subsequent 
cases,  other  than  as  mere  helps.  But  in  the 
United  States  and  England  decisions  of  the  courts 
are  regarded  as  precedents,  with  considerable, 
though  not  conclusive,  authority  in  subsequent 
cases.  Thus  by  adjudication  the  law  may  be  ex- 
panded and  made  to  have  a  more  far-reaching 
effect.  Unless  these  decisions  are  expressly  re- 
pudiated by  the  law-making  power  they  become 
laws  as  of  the  express  or  implied  intent  of  that 
power.    I.  Law  Quart.  Rev.  313. 

4.  Science.  The  scientifical  and  learned  dis- 
courses and  treaties  of  men  who  have  made  a  life- 
long study  of  laws  have  weight  in  determining 
what  the  law  is  and  ascertaining  its  proper  appli- 
cation. In  the  Roman  or  civil  law  the  "Re- 
sponsa  Prudentium,"  or  decisions  of  the  sages  of 
the  law,  were  given  a  recognized  place  in  the 
laws.  While  the  opinions  of  law  writers  are  not 
now  accepted  as  law,  we  can  say  that  the  monu- 
mental works  of  Coke,  Hale,  Lyttleton,  Black- 
stone,  Story,  Cooley,  Mechem,  etc.,  are  accepted 

which  is,  to  provide  for  our  social  welfare  here  on  earth, 
and  leave  each  to  select  his  own  pathway  to  immor- 
tality."   Walker's  Am.  Law,  10,  11. 


72  HOW  TO  STUDY   LAW. 

sometimes  as  the  best  evidence  of  what  the  law 
was  and  is. 

5.  Equity  as  a  Source  of  Law.  Equity  or  the 
natural  justice  of  men  expanding  with  civilization 
made  changes  in  the  rigorous  and  comprehensive 
precepts  of  the  law  necessary.  In  Rome  the 
Praetor  had  power  to  modify  by  an  edict  the 
strict  letter  of  the  law  to  suit  the  particular  cases 
that  came  before  him.  These  edicts,  being  pre- 
served and  followed  by  others,  came  to  be  re- 
garded as  laws.  In  England,  the  chancellor,  a 
sort  of  clerk  to  the  king,  was  delegated  to  dis- 
pense justice  in  cases  where  the  common  law  of 
the  realm  was  deficient,  but  to  prevent  this  jus- 
tice from  becoming,  as  Selden  thought,  ''a 
roguish  thing,"  and  as  varying  as  the  length  of 
the  different  chancellors'  noses,  rules  were  estab- 
lished to  regulate  the  chancellor's  equitable  juris- 
diction, and  these  rules,  together  with  the  decis- 
ions of  the  chancery  courts,  are  laws  and  shall  be 
studied  under  the  head  of  "Equity  of  Chancery 
Law." 

A  sixth  source  of  law  as  given  by  Holland  is 
legislation.  This,  he  says,  is  the  chief  source  of 
law.  Hoi.  Jur.,  Ch.  5.  We  prefer  to  regard  leg- 
islation not  as  a  source  of  law,  such  as  we  have 
already  described,  but  rather  as  the  process  by 
which  rules  of  civil  conduct,  from  whatever 
source,  are,  by  the  sanction  of  the  supreme  polit- 
ical authority  of  a  state,  changed  into  laws. 


HOW  TO   STUDY   LAW.  73 

Sec.  33.  LEGISLATION,  OR  LAW-MAK- 
ING.—Legislation  is  the  process  of  law-making ; 
the  exercising  of  the  power  of  sovereignty,  and 
may  be  expressed  or  implied.  The  results  of  leg- 
islation are  laws.  These  laws  are  either  (i) 
written  or  (2)  unwritten. 

Sec.  34.  WRITTEN  LAWS.— The  written 
law  in  the  United  States  consists  of  constitutions, 
treaties  and  statutes. 

(a)  Constitutions.  In  America  a  constitution 
is  a  solemn  written  declaration  of  the  people,  and 
declared  to  be  the  fundamental  law  of  the  land. 
The  United  States  Constitution  is  the  supreme 
law  and  unites  the  people  for  all  national  pur- 
poses into  a  single  Federal  State.  The  State 
Constitutions  are  supreme  within  a  State  and 
unite  the  people  for  municipal  purposes.  Walk- 
er's Am.  Law,  50,  51. 

(b)  Treaties.  A  treaty  is  a  written  compact  en- 
tered into  between  two  or  more  politically  inde- 
pendent nations  regulating  their  intercourse. 
These  treaties  are  by  the  Constitution  of  the 
United  States  declared  to  be  a  part  of  the  supreme 
law  of  the  land.    Art.  VI.,  cl.  2,  U.  S.  Const. 

(c)  Statutes.  These  include  all  laws  duly  en- 
acted by  the  law-making  authority  and  written 
down  as  a  perpetual  memorial  of  what  the  law 
really  is.  Statutes  are  either  (i)  Public,  or  (2) 
Private.  Public  statutes  are  those  whose  pro- 
visions are  designed  to  regulate  the  entire  com- 
munity.    Private  statutes  apply  only  to  certain 


U  HOW  TO  STUDY   LAW. 

specified  individuals  or  associations.     Walker's 
Am.  Law,  51. 

Sec.  35.  THE  UNWRITTEN  LAW.— The 
unwritten  law  literally  means  statutes  that  have 
never  been  recorded,  or  whose  formal  records 
have  been  lost.  But  as  a  matter  of  fact  these 
statutes  were  never  in  existence,  and  the  legisla- 
tive sanction  is  implied  rather  than  expressed. 
The  unwritten  law  consists  of  the  so-called  com- 
mon law,  and  equity  or  chancery  law. 

Sec.  36.  THE  COMMON  LAW.— "The 
common  law  is  said  to  be  unwritten,  because 
there  is  no  record  of  its  formal  enactment.  It  is 
sometimes  pretended  that  it  consists  of  statutes 
worn  out  by  time,  their  records  having  been  lost. 
It  is  called  a  collection  of  customs  and  traditions, 
commencing  in  immemorial  times,  acquiesced  in 
by  successive  generations,  and  gradually  en- 
larged and  modified  in  the  process  of  civilization. 
The  true  account,  however,  is  that  it  is  the  stu- 
pendous work  of  judicial  legislation.  Theorize 
as  we  may,  it  has  been  made  from  first  to  last  by 
judges ;  and  the  only  records  it  ever  had  are  the 
reports  of  their  decisions,  and  the  essays,  com- 
mentaries, and  digests  founded  thereon.  To  ex- 
plain its  formation,  we  may  suppose  a  question  to 
have  arisen  in  England  centuries  ago,  respecting 
which  the  written  law  contained  no  provision. 
Upon  presenting  this  question  to  the  judge,  he 
must  either  let  a  wrong  go  unredressed  or  make 


HOW  TO  STUDY  LAW.  75 

a  law  to  meet  the  exigency.    He  chose  the  latter 
alternative;    and    in    making    up   his    decision, 
sought  light  from  every  available  source.     If  a 
case  exactly  similar  had  before  been  decided,  he 
would  naturally  adopt  the  decision  then  made.- 
(The  doctrine  of  Stare  Decisis.)    Or  if  an  analo- 
gous case  could  be  found,  he  would  adopt  its  prin- 
ciples so  far  as  they  would  apply.     If  neither  of 
these  he  would  consult  public  policy  and  the  ab- 
stract principles  of  natural  justice.     He  would 
moreover  be  assisted  by  the  arguments  of  the  op- 
posing counsel,  who  would  present  the  case  in 
all  its  bearings.     With  these  aids,  and  in  this 
manner,  he  would  take  up  his  decision ;    and  if 
no  sinister  motive  operated,  the  presumption  is 
that  it  would  be  on  the  side  of  abstract    right. 
Such  briefly  is  the  process  by  which  the  vast 
fabric  of  the  common  law  has  been  reared. ''A 
succession  of  judges,  during  a  long  lapse  of  years, 
have  contributed  the  results  of  their  reason  and 
learning  to  elaborate  and  perfect  it.  In  its  theory, 
each  successive  adjudication  has  become  a  pre- 
cedent for  all  similar  cases  involving  the  same 
principle;   and  it  is  obvious  that  just  in  propor- 
tion as  precedents  are  multiplied,  the  number  of 
unprecedented  cases  must  be  diminished.     Leg- 
islation, moreover,  has  been  constantly  supply- 
ing deficiences.     It  follows,  therefore,  that  the 
field  of  judicial  discretion,  almost  boundless  at 
first,  has  been  gradually  but  steadily  narrowing. 
Still,  however,  admitting  precedents  to  be  abso- 


76  HOW  TO  STUDY   LAW. 

lutely  binding,  which  is  not  the  fact,  though  it  is 
the  theory,  judges  even  at  this  day  exercise  a  far 
wider  discretion  under  the  common  law  than  it 
is  usually  supposed  by  those  not  conversant  with 
the  subject.  And  to  this  extent  there  is  not  that 
complete  separation  between  the  legislative  and 
judicial  power,  which  the  theory  of  our  govern- 
ment supposes."    Walker's  Am.  Law,  53. 

"Of  the  United  States  as  a  nation,  there  is  no 
common  law.  'The  Federal  government  is  com- 
posed of  sovereign  and  independent  states,  each 
of  which  may  have  its  local  usages,  customs  and 
common  law.  There  is  no  principle  which  per- 
vades the  Union,  and  has  the  authority  of  law, 
that  is  not  embodied  in  the  Constitution  or  laws 
of  the  Union.  The  common  law  could  be  made 
a  part  of  our  Federal  system  only  by  legislative 
adoption.'  "  Cooley's  Bl.,  p.  69  n. ;  Wheaton  v. 
Peters,  8  Pet.,  658. 

Sec.  37.  EQUITY  OR  CHANCERY  LAW. 
— In  its  literal  acceptation,  equity  is  nearly  syn- 
onymous with  justice,  but  in  its  technical  sense 
it  means  chancery  law,  or  that  system  of  rules  by 
which  courts  of  chancery  are  governed  in  the 
administration  of  justice.  This,  like  the  com- 
mon law,  consists  of  precedents  running  through 
nearly  the  same  lapse  of  time.  Walker's  Am. 
Law,  55. 

Sec.  38.  DEPOSITORIES  OF  THE  LAW. 
— Where  the  law  is  to  be  found,  or  the  legitimate 
depositories  of  the  law,  is  an  important  point  to 
the  student. 


HOW  TO   STUDY   LAW.  n 

The  written  law,  embracing  constitutions,  trea- 
ties and  statutes  is  to  be  found  in  the  authorized 
pubhc  records.  Both  the  National  and  State 
constitutions  and  statutes  are  published  in  au- 
thenticated editions,  and  these  have  been  com- 
piled and  digested  for  the  convenience  of  the 
profession. 

The  unwritten  law,  comprising  the  common 
law,  and  equity  or  chancery  law,  is  not  so  easily 
located. 

The  common  law,  as  we  have  seen.  Sec.  36, 
consists  of  a  vast  mass  of  decisions  supposedly 
resting  upon  former  statutes.  The  record  of 
these  decisions  is  the  only  authoritative  deposi- 
tory of  the  common  law.  Legal  experts  and  text- 
writers  have  written  commentaries  and  books 
upon  these  decisions,  which  are  also  used  to  de- 
termine what  the  common  law  is. 

These  judicial  precedents  date  back  to  the  very 
beginning  of  English  history.  They  accumu- 
lated in  England  and  at  the  time  of  colonizing 
this  country  they  were  brought  over  the  ocean  as 
the  heritage  of  the  English  settlers,  where  they 
have  continued  to  accumulate  up  to  the  present 
moment.  They  are  to  be  found  in  hundreds  of 
volumes  of  reports,  embracing  the  decisions  of 
the  various  English  and  American  courts,  and  the 
digested  and  abridged  commentaries  thereon. 
Walker's  Am.  Law,  7. 

Equity  or  chancery  law  consists  also  of  judicial 
precedents  to  a  large  extent  and  is  to  be  found 


75  HOW  TO  STUDY  LAW. 

in  the  reports  of  the  courts  of  chancery.  The 
number  of  books  containing  these  precedents  of 
common  and  chancery  law  are  estimated  to  be 
1,500.    Walker's  Am.  Law,  7. 

Sec.  39.  CODIFICATION  OF  LAWS.— 
The  codification  or  systematic  classification  of 
statutory  laws  was  early  rendered  necessary  in 
the  various  States  of  the  Union.  The  express 
regulations  and  enactments  necessitated  to  estab- 
lish local  self-government,  and  to  inaugurate  a 
political  and  civil  system  under  such  novel  cir- 
cumstances as  prevailed  in  America  were  soon 
so  numerous  that  their  revision,  simplification 
and  abridgment  became  necessary.  This  work 
of  codification  began  as  early  as  the  beginning  of 
the  present  century  and  has  been  found  so  effica- 
cious as  to  commend  itself  to  all  classes  of  citi- 
zens, and  has  led  to  the  adoption  by  a  number  of 
States  of  a  complete  statutory,  or  code  system  of 
laws,  designed  to  supersede  the  cumbrous  and 
undigested  mass  of  precedents  which  contain  the 
common  and  chancery  law.  The  States  adopting 
these  statutory  codes  are  called  code  States,  as 
distinguished  from  those  in  which  the  common 
law  is  still  relied  upon  to  a  great  extent. 

The  State  Codes.  The  first  attempt  to  codify 
the  laws  of  any  State  were  regarded  as  vision- 
ary schemes.  A  few  clear-headed  men  believed 
that  through  statutes  and  classification  it  would 
be  possible  to  get  rid  of  the  numerous  distinct 
actions  of  the  common  law  and  to  establish  a 


HOW  TO   STUDY   LAW.  79 

uniform  and  comprehensive  mode  of  proceeding 
without  reference  to  any  distinction  between  law 
and  equity.  The  State  of  New  York  was  the 
first  to  adopt  such  a  comprehensive  code  in  1850. 
Other  States  have  followed  the  example  of  New 
York,  and  it  is  possible  that  in  time  all  the  States 
will  simplify  their  legal  system.  The  codes  as 
adopted  by  these  States  embrace  four  parts — 
Political,  Civil,  Remedial,  Penal — and  are  in- 
tended to  set  forth  in  generalized  and  systematic 
form  the  principles  of  the  entire  law,  whether 
written  or  unwritten,  positive  or  customary,  de- 
rived from  enactments  or  from  precedents,  and 
within  their  scope  to  supersede  all  other  laws. 
Abbott's  Law  Diet.  "Code." 

While  the  adoption  of  a  code  of  laws  has  in 
some  States  superseded  much  of  the  common 
law,  as  well  as  common  lavv  terms  and  actions,  it 
is  still  desirable  for  the  student  of  law  in  a  code 
State  to  be  more  or  less  familiar  with  the  law  as 
it  stood  prior  to  the  adoption  of  the  new  system. 
A  knowledg'e  of  the  forms  that  were  superseded 
is  frequently  necessary  to  understand  those  that 
now  exist,  while  most  of  the  principles  of  the  com- 
mon lav>'  are  either  expressly  or  impliedly  a  con- 
stituent part  of  the  code  law^ 

"Nor  are  the  works  on  common  law  pleading 
superseded  by  the  new  codes  which  have  been 
introduced  in  many  of  the  States.  A  careful 
study  of  those  works  is  the  very  best  preparation 
for  the  pleader,  as  \vell  where  a  code  is  in  force  as 


8o  HOW  TO  STUDY  LAW. 

where  the  old  common  law  forms  are  still  ad- 
hered to.  Any  expectation  which  may  have  ex- 
isted, that  the  code  was  to  banish  technicality 
and  substitute  such  simplicity  that  any  man  of 
common  understanding  was  to  be  competent, 
without  legal  training,  to  present  his  case  in  due 
form  of  law,  has  not  been  realized.  After  a  trial 
of  the  code  system  for  many  years,  its  friends 
must  confess  that  there  is  something  more  than 
form  in  the  old  system  of  pleading,  and  that  the 
lawyer  who  has  learned  to  state  his  case  in  logical 
manner,  after  the  rules  laid  down  by  Stephen 
and  Gould,  js  better  prepared  to  draw  a  pleading 
under  the  code  which  will  stand  the  test  on  de- 
murrer than  the  man  who,  without  that  training, 
undertakes  to  tell  his  story  to  the  court  as  he 
might  tell  it  to  a  neighbor,  but  who,  never  hav- 
ing accustomed  himself  to  a  strict  and  logical 
presentation  of  the  precise  facts  which  constitute 
the  legal  cause  of  action  or  the  legal  defense,  is 
in  danger  of  stating  so  much  or  so  little,  or  of 
presenting  the  facts  so  inaccurately  as  to  leave 
his  rights  in  doubt  on  his  own  showing.  Let 
the  common  law  rules  be  mastered,  and  the  work 
under  the  code  will  prove  easy  and  simple,  and  it 
will  speedily  be  seen  that  no  time  has  been  lost 
or  labor  wasted  in  coming  to  the  new  practice  by 
the  old  road."  Cooley's  Introd.  to  Bl.  Com.,  p. 
xxvii. 

Sec.  40.    DIVISIONS  OR  BRANCHES  OF 
THE  LAW. — Scientific  divisions  of  the  law,  ac- 


HOW  TO   STUDY   LAW.  8i 

cording  to  meaning  and  application,  have  been 
attempted  by  various  writers,  but  inasmuch  as 
their  efforts  in  this  Une  have  produced  no  uniform 
classification  we  are  led  to  assume  that  all  such 
divisions  must  be  rather  for  convenience  of  study 
than  for  scientific  accuracy.  We  reproduce  for 
convenience  the  most  general  classification  as 
given  by  Blackstone  and  Walker. 

Sec.  41.  PUBLIC  INTERNATIONAL 
LAW. — By  Public  International  Law,  or  the  law 
of  nations,  we  mean  those  equitable  precepts 
which  have  on  grounds  of  general  convenience 
come  to  govern  the  intercourse  between  distinct 
nations  or  sovereign  peoples.  These  rules,  begin- 
ning in  mere  customs  or  usages,  have  come  at  the 
present  time  to  have  certain  well-defined  sanc- 
tions which  cannot  be  easily  disregarded.  In 
some  portions  the  international  code  has  been 
enacted  as  a  part  of  the  municipal  law  of  our 
country. 

Sec.  42.  PRIVATE  INTERNATIONAL 
LAW. — Private  International  Law,  or  conflict  of 
Laws,  as  it  is  also  termed,  arises  from  the  fact 
that  the  internal  laws  of  the  various  nations 
differ  widely,  and  when  a  citizen  of  one  nation 
comes  into  the  jurisdiction  of  another  there  is  a 
conflict  of  laws,  from  which  conflict  has  arisen 
rules  of  comity  and  practice  which,  as  prece- 
dents, constitute  Private  International  Law.  So 
that  "when  citizens  of  one  nation  remove  to  or- 


82  HOW  TO  STUDY  LAW. 

travel  in  another,  and  make  contracts,  acquire 
property,  marry  or  die  there,  it  is  no  longer  a 
matter  of  doubt  by  which  law  their  rights  will  be 
determined."     Walker's  Am.  Law,  13. 

Sec.  43.  CONSTITUTIONAL  LAW.— Hav- 
ing seen  what  it  is  that  regulates  the  relations  be- 
tween nation  and  nation,  we  next  come  to  the 
domestic  laws  of  a  nation  regulating  its  own 
internal  affairs.  Every  people  in  the  course  of 
their  associated  life  have  formulated  certain 
fundamental  provisions  regarding  the  nature  of 
their  political  organization,  and  limiting,  as  it 
were,  the  extent  to  which  the  individual  is  re- 
sponsible to  the  collective  whole.  These  prin- 
ciples circumscribing  the  powers  of  the  political 
entity  form  the  constitution  of  a  nation.  Whether 
these  principles  exist  as  mere  unwritten  usages 
and  precedents,  subject  to  the  omnipotent  will  of 
parliament  and  capable  of  being  overturned  by 
an  ordinary  statute,  as  is  the  case  in  England,  or 
consist  of  carefully  formulated  precepts  of  gov- 
ernment, written  out  and  adopted  by  the  people 
as  the  supreme  law  of  the  land,  they  are  equally 
designated  as  constitutions. 

In  the  United  States  we  have  National  and 
State  Constitutions  as  a  result  of  our  dual  form 
of  government.  The  States,  on  gaining  their  in- 
dependence, were  distinct  sovereignties  ;  but  "to 
promote  the  general  welfare,"  the  sovereign  peo- 
ple of  the  various  States  united  in  establishing  a 
national  sovereignty  supreme  in  all  matters  dele- 


HOW  TO   STUDY    LAW.  83 

gated  to  it,  while  the  individual  states  retained 
the  sovereignty  not  delegated.  The  United  States 
Constitution  fixes  the  sphere  of  the  national  gov- 
ernment;  and  the  State  Constitutions  regulate 
the  exercise  of  State  sovereignty,  thereby  creating 
Federal  and  State  Constitutional  Law. 

Sec.  44.  LAW  PERTAINING  TO  PER- 
SONS.— By  law  pertaining  to  persons  we  mean 
statute  and  precedent  law  regulating  the  relations 
which  members  of  political  society  can  sustain 
towards  each  other ;  whether  as  male  or  females, 
infants  or  adults,  masters  or  servants,  or  whether 
natural  or  artificial  persons,  acting  for  them- 
selves or  through  others.  So  that  under  this  di- 
vision we  have  the  subjects:  Domestic  Rela- 
tions, Personal  Rights,  Public  Corporations,  Pri- 
vate Corporations,  Partnerships,  Principal  and 
Agent,  and  Principal  and  Surety. 

Sec.  45.  LAW  PERTAINING  TO  PROP- 
ERTY.— Property  according  to  Blackstone  is 
either  Real  or  Personal ;  and  Personal  property 
is  either  in  possession  or  in  action,  the  latter  in- 
cluding all  the  various  kinds  of  contracts.  Hence 
under  things  real  and  things  personal,  including 
the  modes  of  acquiring  and  transferring  property, 
we  have  the  subjects :  Real  Property,  Personal 
Property,  Contracts,  Negotiable  Instruments, 
Bailments,  and  Wills. 

Sec.  46.  LAW  PERTAINING  TO  CRIMES. 
—-Public  wrongs  or  crimes  give  rise  to  the  divis- 


t4  HOW  TO  STUDY  LAW. 

ion  of  Criminal  Law ;  and  the  application  of  this 
law  is  called  Criminal  Procedure.  The  two  will 
be  treated  together. 

Sec.  47.  THE  LAW  OF  PROCEDURE.— 
It  is  not  only  necessary  that  laws  be  declared,  but 
also  that  they  be  applied  or  carried  into  effect. 
Law  confers  rights,  but  these  must  be  enforced  or 
a  remedy  given  when  they  are  transgressed.  The 
former  is  called  the  field  of  substantive  law,  while 
the  latter  is  procedure  or  adjective  law.  Under 
the  latter  is  called  procedure  or  adjective  law. 
Under  the  latter  head  we  have  the  subjects  of 
Pleading,  Practice,  and  Evidence.  Equity  might 
also  be  put  under  this  head  since  it  is  chiefly 
remarkable  for  its  peculiar  rules  of  procedure. 

Sec.  48.  LEGAL  ETHICS. — The  moral  prin- 
ciples and  rules  applying  to  and  governing  the 
relation  between  the  lawyer  and  his  client,  the 
courts  and  the  community  are  now  termed 
"Legal  Ethics"  and  constitute  a  regular  branch 
upon  which  law  students  are  examined.  This 
subject  will  be  appropriately  treated  in  the  Cyclo- 
pedia of  Law. 

Sec.  49.  THE  INTERPRETATION  OF 
LAWS. — "The  fairest  and  most  rational  method 
to  interpret  the  will  of  the  legislator  is  by  ex- 
ploring his  intentions  at  the  time  when  the  law 
was  made,  by  signs  the  most  natural  and  prob- 
able. And  these  signs  are  either  the  words,  the 
context,  the  subject  matter,  the  effects  and  con- 


HOW   TO    STUDY    LAW.  '85 

sequences,  or  the  spirit  and  reason  of  the  law." 
Intro.  Bl.  Com.,  p.  59.  These  he  explains  as  fol- 
lows : 

1.  Words  are  generally  to  be  understood  in 
their  usual  and  most  known  signification ;  not 
so  much  regarding  the  propriety  of  grammar,  as 
their  general  and  popular  use.  Again,  terms  of 
art,  or  technical  terms,  must  be  taken  according 
to  the  acceptation  of  the  learned  in  each  art, 
trade  and  science. 

2.  The  "context,"  or  that  which  precedes  or 
follows  the  part  in  question,  may  be  of  singular 
use  whenever  there  is  an  ambiguous,  equivocal 
or  intricate  sentence.  Thus  the  proeme,  or  pre- 
amble, is  often  called  in  to  help  the  construction 
of  an  act  of  parliament.  Of  the  same  nature  and 
use  is  the  comparison  of  a  law  with  other  laws, 
that  are  made  by  the  same  legislator,  that  have 
some  affinity  with  the  subject,  or  that  expressly 
relate  to  the  same  point.  Thus,  when  the  law  of 
England  declares  murder  to  be  felony  without 
benefit  of  clergy,  we  must  resort  to  the  same  law 
of  England  to  learn  what  the  benefit  of  clergy  is. 

In  States  where  the  object  or  subject  of  a 
statute  must  be  stated  in  the  title,  the  title  is  of 
more  importance  and  may  control  the  construc- 
tion. And  it  is  a  general  rule  that  statutes  upon 
the  same  subject  must  be  construed  with  refer- 
ence to  each  other;  that  is,  that  what  is  clear  in 
one  statute  shall  be  called  in  to  explain  what  is 
obscure  in  another. 


86  HOW  TO  STUDY  LAW. 

3.  As  to  the  "subject  matter,"  words  are  always 
to  be  understood  as  having  a  regard  thereto,  for 
that  is  always  supposed  to  be  in  the  eye  of  the 
legislator,  and  all  his  expressions  directed  to  that 
end. 

4.  As  to  the  "effects  and  consequences,"  the 
rule  is  that  where  words  bear  either  none,  or  a 
very  absurd  signification,  if  literally  understood, 
we  must  deviate  a  little  from  the  received  sense 
of  them. 

5.  The  last  and  most  universal  and  effectual 
way  of  discovering  the  true  meaning  of  a  law, 
when  the  words  are  dubious,  is  by  considering  the 
"reason  and  spirit"  of  it ;  or  the  cause  which 
moved  the  legislator  to  enact  it.  For  when  this 
reason  ceases,  the  law  itself  ought  likewise  to 
cease  with  it.  *  *  *  From  this  method  of 
interpreting  laws,  by  the  reason  of  them,  arises 
what  we  call  equity,  which  is  thus  defined  by 
Grotius :  "The  corrections  of  that  wherein  the 
law  by  reason  of  its  universality  is  deficient." 
Intro.  Bl.  Com.,  pp.  59-61. 

Sec.  50.  LAW  AND  POPULAR  INFLU- 
ENCE.— In  the  United  States  the  people  consti- 
tute the  sovereign  power.  Delegates  of  the  peo- 
ple make,  construe  and  execute  the  laws.  Popu- 
lar influence  thus  decides  largely  both  what  the 
laws  shall  be,  and  how  well  they  shall  be  ob- 
served. A  law  may  be  enacted  and  spread  at 
large  on  the  pages  of  the  statute  book,  but  if  it 
does  not  appeal  to  the  sense  of  right  and  iustice 


HOW  TO   STUDY   LAW.  ^7 

of  the  people  it  soon  becomes  a  dead  letter,  and 
its  enforcement  is  not  even  attempted.  But,  on 
the  other  hand,  if  there  is  any  wrong  which  the 
people  see,  and  which  appeals  to  their  natural 
sense  of  justice  a  law  is  soon  demanded  to  cover 
and  redress  it.  Thus  the  real  binding  law  in 
America,  as  has  been  remarked  by  Professor 
Mechem,  is  armed  and  organized  public  senti- 
ment. "It  is  the  formal  and  manifest  expression 
of  the  public  sense  of  justice.  Not  the  aroused 
and  abnormal  impulses  of  the  people  in  their  mo- 
ments of  agitated  fervor;  not  the  sense  of  justice 
of  the  few  seers  upon  the  mountain  tops,  to  whom 
it  is  given  to  look  with  undimmed  vision  far  over 
the  distant  boundaries  into  the  promised  land, 
but  the  moral  sentiment,  and  the  sense  of  justice 
of  the  great  average  masses  of  mankind  at  their 
normal  periods.  The  truth  is,  law  is  written  not 
alone  upon  tables  of  stone,  or  upon  the  printed 
pages  of  the  statute  book,  but  it  has  been  in- 
scribed in  indelible  characters  by  the  finger  of 
Almighty  God  upon  the  imperishable  tablets  of 
the  human  heart."  From  a  lecture  by  Prof. 
Mechem  to  the  graduating  class  at  University 
of  Michigan,  1896. 

INFLUENCE  OF  THE  AMERICAN 
LAWYER. — The  potent  and  beneficial  mfluence 
of  the  American  lawyer  is  well  expressed  by  these 
words  of  Prof.  Mechem  in  the  lecture  above  cited : 
*'Who  drafted  our  Declarations  of  Independence? 
Who  framed  our    Constitutions?     Who    inter- 


88  HOW  TO  STUDY  LAW. 

preted,  defended  and  applied  those  Constitu- 
tions? Who  has  drawn  our  treaties?  Who  has 
led  our  nation  in  times  of  public  peril?  Who 
has  issued  our  Proclamations  of  Emancipation? 
Who,  in  short,  has  been  most  prominent  and 
most  potent  in  securing  and  protecting  our  cher- 
ished institutions?  I  answer:  More  than  any 
other  class,  it  has  been  the  lawyers  of  our  coun- 
try. Whether  it  was  a  Patrick  Henry,  rousing 
by  his  eloquence  and  patriotism  his  countrymen 
to  resist  oppression ;  or  a  Thomas  Jefiferson, 
drafting  a  Declaration  of  Independence ;  or  a 
Madison,  a  Wilson,  a  Sherman  and  a  score  of 
others  framing  a  Constitution ;  or  a  Hamilton, 
appl}  ing  the  new  Constitution  to  the  pressing 
needs  of  the  young  republic  ;  or  a  Marshall,  lay- 
ing broad  and  deep  the  principles  of  its  interpre- 
tation ;  or  a  Webster,  defending  it  against  the 
attacks  of  its  enemies  ;  or  a  Lincoln,  laying  down 
his  life  that  the  government  established  by  that 
Constitution  should  not  perish  from  the  earth — 
there  never  has  been  wanting  some  brave,  high- 
minded,  patriotic  lawyer  to  fight  and  win  the 
people's  battles  for  their  public  liberties." 

Political  liberties  have  been  secured  by  the  aid 
of  law;  there  is  a  growing  desire  and  demand 
for  industrial  liberty.  Shall  not  the  lawyer  be  the 
means  and  instrument  by  which  this  new  ideal, 
the  hope  and  prayer  of  the  people,  shall  be  real- 
ized and  crystallized  into  laws?  We  believe  that 
he  will  prove  as  true  and  as  potent  in  fulfilling  this 


HOW  TO   STUDY    LAW.  89 

latter  duty  as  he  has  been  in  the  past.  To  the 
coming  Henrys,  Jeffersons,  Lincohis,  we  bid  a 
Godspeed  and  a  welcome.  We  say.  in  the  words 
of  Adams,  "At  the  bar  is  the  scene  of  indepen- 
dence. Integrity  and  skill  at  the  bar  are  better 
supporters  of  independence  than  any  fortune,  tal- 
ents or  eloquence  elsewhere.  *  *  *  Presi- 
dents, governors,  senators,  judges,  have  not  so 
mAich  honest  liberty ;  but  it  ought  always  to  be 
regulated  by  prudence,  and  never  abused."  John 
Adams'  Works,  X.,  21. 


90 


HOW  TO  STUDY  LAW. 


Subjects  Treated  in  the  Cyclopedia 
of  Law. 


Public  International  Law. 


_  .      ,    T  X         *•        IT         I  Will  be  treated  in  conneo 
Private  International  Law,  |  ^.^^  ^-^^  ^^^^^  subjects 


Constitutional  Law: 


Federal. 
State, 


National 

or 

Municipal 

Law. 


1.  Domestic  Eelations. 

2.  Personal  Rights. 

3.  Partnerships. 
Persons:      -J  4.  Principal  and  Agent. 

5.  Principal  and  Surety. 

6.  Public  Corporations. 

7.  Private  Corporations. 

r  1.  Real  Property. 

2.  Personal  Property, 

J  3.  Contracts. 

Property:  ■{  ^  Negotiable  Instruments. 

5.  Bailments. 

6.  Wills. 


Crimes:        \ 

Procedure:  j 

Chancery  Law  or  Equity. 
^  Legal  Ethics. 


Criminal  Law  and 
Criminal  Procedure. 

1.  Pleadings  &  Practice. 

2.  Evidence. 


HOW  TO   STUDY   LAW.  9* 


HELPS  TO  STUDENTS. 

The  Cyclopedia  of  Law  is  devoted  entirely 
to  the  subject  of  law,  but  in  these  helps  we 
desire  to  mention  several  subjects  germane  to 
law  or  necessary  to  its  successful  practice. 

"It  scarcely  seems  necessary,"  says  Judge 
Cooley,  "to  remark  that  the  student  of  American 
law  ought  to  be  well-grounded  in  English  his- 
tory, and  to  have  studied  the  development  of  con- 
stitutional principles  in  the  struggles  and  revolu- 
tions of  the  English  people.  It  is  idle  to  come  to 
an  examination  of  American  constitutions  with- 
out some  familiarity  with  that  from  which  they 
have  sprung,  and  impossible  to  understand  the 
full  force  and  meaning  of  the  maxims  of  personal 
liberty,  which  are  so  important  a  part  of  our  law, 
without  first  learning  how  and  why  it  was  that 
they  became  incorporated  in  the  legal  system." 

To  those  students  who  have  not  already  had 
this  grounding  in  English  history  we  suggest 
that  as  a  preliminary  preparation  to  the  study  of 
the  next  number  of  this  series — Constitutional 
Law — that  some  comprehensive  English  history 
be  read  carefully  and  notes  made  thereon.  Nearly 
all  libraries  contain  several  standard  English  his- 
tories, any  one  of  which  will  serve  the  student's 
purpose. 

Again,  the  lawyer  must,  of  necessity,  use  his 


92  HOW  TO  STUDY   LAW. 

voice,  and  this  like  his  intellect  to  be  of  the  most 
service  and  benefit  to  him  must  be  trained  and 
developed.  Skill  in  speaking  has  wrongly  been 
supposed  to  be  a  natural  talent ;  in  some  cases  it 
may  be  so,  but  in  the  majority  of  instances  the 
effective  speaker  has  developed  his  powers  of 
voice  and  action  in  the  same  manner  as  other 
capacities.  Most  lawyers  in  the  course  of  years 
become  good  speakers,  not  to  say  orators,  and 
this  without  being  specially  gifted  in  the  begin- 
ning. Judge  Cooley  remarks  that  the  learned 
man  cannot  well  be  dull  when  speaking  of  the 
science  he  has  mastered,  and  Socrates  exclaimed 
that  all  men  are  eloquent  in  that  which  they  un- 
derstand. Thus  lawyers  filled  with  the  science 
they  follow  and  earnest  in  their  efiforts  to  secure 
the  rights  of  their  clients  unconsciously  develop 
the  three  chief  requisites  of  a  good  speaker, 
namely,  clearness,  force,  and  earnestness. 

But  if  oratorical  skill  can  be  developed  at  the 
bar,  it  may  also  be  developed  to  some  extent 
while  preparing  for  admission  to  the  bar.  We 
again  quote  from  Judge  Cooley  who  says  in  this 
regard,  "Some  experience  in  extempore  speak- 
ing every  young  man  ought  to  have  before  com- 
ing to  the  bar.  and  if  he  begin  his  practice  with- 
out the  discipline  it  would  give,  he  cannot  be  cer- 
tain that  timidity  and  embarrassment  will  not 
overcome  him  at  the  outset  of  his  career.  Few 
men  are  Erskines  and  Patrick  Henrys,  gifted  with 
powers  that  make  their  first  essay  a  triumph  ;  the 


HOW  TO   STUDY   LAW.  93 

first  efforts  are,  almost  necessarily,  mortifying 
failures."  The  eminent  judge  advocates  that 
these  maiden  efforts  of  the  student  should  be 
made  in  small  societies  and  among  friends  rather 
than  before  a  critical  public  audience,  and  con- 
cludes with  the  statement  that,  "Self-confidence 
the  advocate  must  acquire ;  and,  in  order  that  he 
may  possess  it,  he  must  have  the  necessary  knowl- 
edge ;  and,  secondly,  he  must  have  tried  his 
powers  until  he  is  certain  of  them."  Cooley's 
Intro.  Bl.  Com.,  p.  xxviii. 

Among  the  advertisements  in  this  book  will  be 
found  that  of  a  Speaker  and  Manual  of  Oratory. 
This  book  was  prepared  chiefiy  for  those  stu- 
dents who  have  to  forego  the  advantages  of  a 
teacher.  It  gives  and  explains  the  principles  of 
elocution  and  oratory,  including  gesture  and 
voice  training.  The  Speaker  contains  the  fa- 
mous speeches  and  orations  of  the  leading  his- 
torical personages,  which  are  adapted  for  study 
and  practice.  Some  such  a  book  the  students 
should  have,  and,  which  is  still  more  important, 
should  follow  its  advice  to  practice  speaking  in 
public. 

For  the  purpose  of  practice  in  speaking,  as  well 
as  the  advantages  of  association,  we  advise  stu- 
dents, where  possible,  to  form  a  club  or  society 
of  such  persons  as  are  desirous  of  advancing 
themselves  along  this  line.  In  almost  every  town 
or  village  a  half  dozen  or  more  persons  can  be 
secured  who  will  gladly  embrace  the  opportunity 


94  HOW  TO  STUDY  LAW. 

to  learn  law  as  given  by  the  Home  Law  School 
Series.  If  care  is  taken  in  the  selection  of  the 
persons  forming  these  little  groups  they  cannot 
help  but  be  of  great  benefit  to  the  individuals 
composing  them.  Roger  North,  the  English  his- 
torian, said :  "A  student  of  the  law  hath  more 
than  ordinary  reason  to  be  curious  in  his  con- 
versation, and  to  get  such  as  are  of  his  own  pre- 
tension, that  is,  to  study  and  improvement ;  and 
I  will  be  bold  to  say,  that  they  shall  improve  one 
another  by  discourse  as  much  as  all  their  other 
study  without  it  could  improve  them." 

A  further  suggestion  seems  to  be  demanded 
since  many  of  the  persons  who  make  use  of  this 
series  of  books  will  do  so  in  their  spare  hours. 
Care  must  be  taken  not  to  neglect  one's  health,  or 
to  lose  track  of  current  events  while  securing  this 
special  training.  And  further,  "the  law  student 
must  not  forget  that  he  is  fitting  himself  to  be  a 
minister  of  justice ;  and  that  he  owes  it  to  him- 
self, to  those  who  will  be  his  clients,  to  the  courts 
he  shall  practice  in,  and  to  society  at  large,  that 
he  cultivate  carefully  his  moral  nature  to  fit  it  for 
the  high  and  responsible  trust  he  is  to  assume. 
The  temptations  of  dishonest  gain  and  the  allure- 
ments of  dissipation  are  all  the  time  leading  to 
shame  and  ruin,  from  the  ranks  of  our  profes- 
sion, a  long  and  melancholy  train  of  men  once 
hopeful,  perhaps  gifted ;  but  the  true  lawyer  is 
pure  in  life,  courteous  to  his  associates,  faithful 
to  his  clients,  just  to  all ;   and  the  student  must 


HOW  TO   STUDY   LAW.  95 

keep  this  true  ideal  before  him,  observe  temper- 
ance, be  master  of  his  actions,  and  seek  in  all 
things  the  approval  of  his  own  conscience,  if  he 
would  attain  the  highest  possible  benefit  from  the 
study  of  the  law."  Cooley's  Intro.  Bl.  Com.,  p. 
xxxii. 


HOW  TO   STUDY   LAW.  97 


QUESTIONS  FOR  STUDENTS. 

(The  questions  are  numbered  to  correspond  with  the 
sections  in  this  book;  the  answers  may  be  obtained  by 
referring  to  the  corresponding  sections.) 

CHAPTER  I. 

1.  Mention  the  leading  difficulties  encountered 

by  the  law  student. 

2.  How  is  the  chief  obstacle  to  the  study  of  law 
removed  by  the  Cyclopedia  of  Law?  What  was 
the  purpose  of  Blackstone's  Commentaries? 
(See  Preface.)  What  has  been  said  as  to  the 
merit  of  such  a  system? 

3.  Was  there  any  system  for  the  study  of  law 
prior  to  1765  ?  Is  the  law  more  voluminous  now 
than  in  Blackstone's  time  ? 

4.  When  were  Blackstone's  lectures  first  pub- 
lished? What  American  authors  have  written 
commentaries  on  the  law  ?  Why  should  the  stu- 
dent be  directed  in  his  studies  ? 

5.  What  important  assistance  does  the  law  stu- 
dent require  ? 

6.  Why  is  a  knowledge  of  the  law  necessary 
to  others  than  lawyers  ?  Give  the  special  reasons 
why  an  American  citizen  should  be  familiar  with 
the  laws  of  his  country. 

7.  Is  a  knov.'ledge  of  the  law  regarded  as  an 
accomplishment?    State  its  practical  benefits. 


98  HOW  TO  STUDY  LAW. 

8.  What  may  be  said  as  to  the  law  student's 
previous  education  ?  What  requirement  is  men- 
tioned by  Blackstone?  Is  a  knowledge  of  other 
languages  important?  What  has  been  the  lan- 
guage of  the  English  law  ?  What,  in  general,  is 
a  sufficient  preparation  for  the  study  of  law? 

9.  How  may  the  time  necessary  to  acquire  a 
knowledge  of  the  law  be  greatly  reduced? 

10.  Should  all  other  work  and  study  be  laid 
aside  to  master  law?  Have  persons  studied  law 
while  following  their  usual  avocations?  What 
was  Franklin's  definition  of  leisure  ?  How  much 
leisure  time  have  you,  and  how  do  you  em- 
ploy it? 

11.  What  may  be  said  of  the  cost  of  a  legal 
education?  How  may  it  be  reduced  to  a  mini- 
mum? 

12.  What  may  be  said  as  to  the  proper  age  at 
which  to  begin  the  study  of  law? 

13.  Should  women  study  law?  Give  reasons 
for  your  answer. 

14.  Is  not  your  occupation  such  that  you 
could  study  the  Cyclopedia  of  Law  with  advan- 
tage? 

15.  Are  you  desirous  of  attaining  a  higher  in- 
tellectual and  social  plane  ?  Will  not  a  knowledge 
of  the  law  assist  you  ? 

16.  Have  you  not  friends  and  acquaintances 
who  would  gladly  join  with  you  in  establishing 
a  local  club  for  the  purpose  of  studying  law  ? 


HOW  TO   STUDY   LAW.  99 

CHAPTER  II. 

17.  Give  Blackstone's  definition  of  law;  Hol- 
land's. 

18.  Give  fully  the  analysis  of  Blackstone's  def- 
inition.   What  are  the  several  parts  of  a  law  ? 

19.  In  what  more  comprehensive  sense  is  the 
word  law  used  ?  By  what  reasoning  does  Black- 
stone  find  a  higher  sanction  for  law  than  the 
state  ? 

20.  What  other  view  of  the  origin  of  law  can 
you  give  ?  How  is  the  word  law  as  used  in  the 
theoretical  sciences  distinguished  from  its  use  in 
the  practical  sciences  ?  What  is  Ethic  ?  Nomol- 
ogy?  Give  the  divisions  of  Nomology.  Which 
of  the  Nomological  sciences  is  the  jurist's  con- 
cern? 

21.  What  class  of  laws  are  we  to  consider? 
Explain  what  is  meant  by  the  "law  of  nature." 
Why  are  laws  of  indeterminate  authority  ex- 
cluded by  the  jurist? 

22.  What  influence  has  the  law  of  nature  on 
the  positive  law?  What  is  International  Law? 
Explain  what  is  meant  by  mala  in  se,  and  mala 
prohibitum. 

23.  Why  is  political  organization  necessary 
to  law  ? 

24.  W^hat  may  be  said  as  to  the  development 
of  the  law  ?  How  does  a  law  differ  from  a  moral 
rule?  How  would  we  go  about  to  ascertain 
what  the  law  is  on  a  particular  subject?  What 
may  be  said  as  to  changes  in  laws  ? 


100  HOW  TO  STUDY  LAW. 

25.  Explain  the  origin  of  political  societies. 

26.  What  is  meant  by  a  people? 

27.  Define  a  state.  What  two  parts  in  a  state  ? 
Define  each. 

28.  Discuss  the  origin  of  States.  What  is 
Blackstone's  opinion  of  the  original  contract  of 
society? 

29.  Define  government.  What  are  the  divis- 
ions of  government  in  regard  to  the  residence  of 
sovereignty?  Define  Monarchy;  Aristocracy; 
Democracy. 

30.  Define  a  republican  government.  Why  is 
a  republican  government  said  to  be  a  mixed  gov- 
ernment? What  advantages  did  Blackstone 
claim  for  the  English  system  of  government? 
Are  these  advantages  found  in  our  system  ?  After 
which  government  is  ours  modeled  ? 

31.  What  is  the  best  form  of  government? 
Discuss  fully.  What  may  be  said  as  to  the  spread 
of  democracy  ? 

32.  What  is  meant  by  sources  of  the  law? 
Explain  how  custom  may  be  said  to  be  a  source 
of  law ;  religion ;  adjudication;   science;  equity. 

33.  What  is  meant  by  legislation?  What  is 
the  result  of  legislation?  Into  what  general 
classes  are  laws  divided  ? 

34.  Of  what  does  the  written  law  of  the  United 
States  consist  ?  What  is  meant  by  a  constitution  ? 
Explain  the  difference  between  the  Federal  Con- 
stitution and  State  Constitution.  Define  a  treaty. 
What  is  meant  by  statutes  ?  Into  what  two  gen- 
eral classes  are  statutes  divided  ?    Define  each. 


HOW  TO   STUDY   LAW.  loi 

35.  Discuss  the  unwritten  law.  Of  what  does 
it  consist  ? 

36.  Discuss  the  common  law  in  regard  to  its 
origin  and  development.  What  is  a  precedent? 
What  is  meant  by  the  doctrine  of  stare  decisis? 
Is  there  a  common  law  of  the  United  States  as  a 
nation  ?    Of  the  States  ? 

37.  What  is  meant  by  equity  or  chancery  law  ? 
Of  what  does  it  consist? 

38.  What  are  the  depositories  of  the  written 
law  ?  Of  the  unwritten  law  ?  What  is  meant  by 
reports  ? 

39.  What  is  meant  by  codification  of  laws? 
Why  was  codification  necessary  and  practical  in 
the  United  States?  What  is  meant  by  a  code 
State?  What  was  the  purpose  and  object  of 
codification  ?  When  and  by  which  State  was  the 
first  code  adopted?  Does  the  statutory  code 
supersede  within  its  scope  all  other  laws?  Is  a 
knowledge  of  coijimon  law  yet  necessary  to  the 
student  in  the  code  States?  What  does  Judge 
Cooley  say  as  to  the  value  of  the  common  law 
rules  of  pleading? 

40.  What  may  be  said  as  to  separating  the  law 
into  separate  branches?  In  what  way  is  such  a 
division  helpful  ? 

41.  Define  public  international  law. 

42.  Define  and  discuss  private  international 
law. 

43.  Define  a  constitution.  How  do  you  ac- 
count for  dual  constitutions  in  the  United  States? 


102  HOW  TO  STUDY  LAW. 

44.  Discuss  laws  pertaining  to  persons.  What 
branches  or  subjects  fall  under  this  division? 

45.  Into  what  two  general  classes  is  property 
divided?  What  subjects  are  considered  under 
property  law? 

46.  What  name  is  given  to  the  law  regulating 
crimes  or  public  wrongs  ? 

47.  What  is  meant  by  substantive  law?  By 
adjective  law  or  procedure?  What  subjects  come 
under  the  head  of  procedure  ? 

48.  What  is  meant  by  legal  ethics  ? 

49.  By  what  signs  may  the  will  of  the  legisla- 
ture be  interpreted  ?  Hovv'  are  words  to  be  gen- 
erally understood?  What  is  meant  by  the  con- 
text? Subject  matter?  Effects  and  conse- 
quences? What  branch  of  law  arises  from  in- 
terpreting a  law  according  to  its  reason  and 
spirit  ? 

50.  Where  does  sovereignty  reside  in  the 
United  States?  Is  the  law  influenced  by  popu- 
lar sentiment?  Discuss  fully.  What  influence 
has  the  lawyer  had  upon  political  liberty  in  Amer- 
ica? What  further  service  can  the  lawyer  render 
to  his  country? 


PART  II. 

IN    WHICH    THE     STUDENT   IS     INTRODUCED    TO   SIR 

WILLIAM    BLACKSTONE,   AND    GIVEN  A  TASTE 

OF    HIS    IMMORTAL    COMMENTARIES  ON 

THE    LAWS  OF    ENGLAND. 

INTRODUCTORY. 

Sir  William  Blackstone  was  born  at  London, 
July  loth,  1723,  and  died  February  14th,  1780. 
The  plan  of  his  great  work  was  completed 
at  the  age  of  thirty,  when  he  delivered  in 
Oxford,  a  course  of  lectures  which,  in  the  year 
1765,  took  the  form  of  "Blackstone's  Commen- 
taries on  the  Laws  of  England."  Eight  edi- 
tions of  this  monumental  work  appeared  in 
the  author's  lifetime,  and  a  great  many  more 
have  been  published  since.  Among  the  Eng- 
lish editors  and  annotators  of  Blatkstone's 
work  are  Coleridge,  Chitty,  Christian,  and 
others.  Sharswood  and  Cooley  are  American 
editors  of  the  same  work.  The  edition  of 
Blackstone's  Commentaries  by  the  late  Judge 

Thomas    M.    Cooley,    of    Michigan,    the  well- 
103 


I04  HOW  TO  STUDY  LAW. 

known  and  respected  jurist  and  author,  is 
doubtless  the  best  American  edition,  and  is  one 
of  the  first  books  to  which  the  ambitious  stu- 
dent of  law  is  usually  introduced. 

William  Blackstone  not  only  made  it  his 
object  to  show  that  a  knowledge  of  the  laws  of 
his  country  was  of  the  first  importance  to 
every  Englishman  of  rank  and  distinction,  and 
especially  to  those  who  aspired  to  be  justices 
or  legislators,  but  also  aimed  to  put  in  pala- 
table and  accessible  form  the  laws  of  England, 
so  that  every  one  who  wished  might  come  to  a 
fair  and  accurate  knowledge  of  the  laws  of  his 
country.  For  this  laudable  and  painstaking 
work  thousands  of  students  in  England  and 
America  have  offered  and  will  ofiEer  unstinted 
praise  to  the  author  of  the  "Commentaries." 

While  England  and  America  are  greatly  in- 
debted to  Blackstone  for  collecting  and  pre- 
senting in  compact  and  intelligible  form  the 
laws  of  his  land,  yet  the  student  to-day  must 
not  lose  sight  of  the  fact  that  even  so  great  a 
genius  and  writer  as  he,  could  use  his  reason- 
ing powers,  apt  sentences,  and  ready  logic  to 
the  bolstering  up  of  laws  and  institutions  which 
his  own  best  judgment  must  have  told  him 
were  not  to  be  justified  in  law  or  reason. 


INTRODUCTORY.  105 

Blackstone  was  not  an  ideal  jurist,  he  was 
simply  a  practical  codifier ;  he  had  no  care  for 
the  future  of  the  law,  only  for  the  past ;  it  was 
his  task  to  find  out  what  the  law  was  and  set  it 
down,  not  to  speculate  what  it  might  or  should 
be  to  best  answer  the  purposes  of  mankind. 
It  is  true  that  he  commends  many  things  in  the 
common  law  and  finds  the  origin  of  certain 

precepts   in   reason   and  natural  justice,    but  \ 

nevertheless  his  vision  is  confined  to  the  cus-  \ 

toms  and  institutions  which  immediately  sur- 
round him ;  he  has  no  light  to  throw  a  shadow 
of  the  higher  and  truer  State  wherein  all  should 
be  equal  in  the  eye  of  the  law,  and  the  whole 
people  constitute  the  sovereign  power ;  he  finds 
no  inconsistency  in  trusting  the  administra- 
tion of  justice  to  the  arbitrary  instincts  of  a 
monarch;  and  utters  not  a  word  of  protest 
against  the  grinding  laws  that  the  hereditary 
nobility  enacted  for  the  mulcting  of  a  helpless 
people. 

The  student  must  bear  in  mind  while  perus- 
ing the  first  few  chapters  of  the  "Commen- 
taries" that  Blackstone  was  an  Englishman, 
with  all  of  the  Englishman's  sluggish  hate 
towards  new  ideas  in  matters  of  law  or  custom, 
and  that  he  became  one  of  the  King's  justices 


lo6  HOW  TO  STUDY  LAW. 

and  a  staunch  supporter  of  royalty,  then  he 
may  understand  the  different  sentiments  ex- 
pressed by  Blackstone  in  his  eulogy  of  the 
British  Constitution  (Com.  Sec.  2,  Intro.),  and 
his  remarks  upon  the  laws  governing  land 
tenure  (Com.  Book  II.,  page  2),  from  which 
we  quote  the  following: 

"There  is  nothing  which  so  generally  strikes 
the  imagination,  and  engages  the  affections  of 
mankind,  as  the  right  of  pr^^perty ;  or  that  sole 
and  despotic  dominion  which  one  man  claims 
and  exercises  over  the  external  things  of  the 
world,  in  total  exclusion  of  the  right  of  any 
other  individual  in  the  universe.  And  yet 
there  are  very  few  that  will  give  themselves 
the  trouble  to  consider  the  original  and  foun- 
dation of  this  right.  Pleased  as  ive  are  with  the 
possession,  we  seem  afraid  to  look  back  to  the 
vieans  by  which  it  was  acquired,  as  if  fearful  of 
some  defect  iyi  our  title;  or  at  best  we  rest  satis- 
fied with  the  decision  of  the  laws  in  our  favour, 
without  exajnining  the  reason  or  authority  upon 
which  those  laws  have  been  built.  We  think  it 
enough  that  our  title  is  derived  by  the  grant  of 
the  former  proprietor,  by  descent  from  our 
ancestors,  or  by  the  last  will  and  testament  of 
the  dying  owner;  not  caring  to  reflect  that 
(accurately  and  strictly  speaking)  there  is  no 
foundation  in  7iature  or  natural  law ^  why  a  set  of 
zvords  upon  parchment  should  convey  the  domin- 
ion of  land;  why  the  son  should  have  a  right  to 
exclude  his  fellow  creatures  from  a  determinate 
spot  of  ground,  because  his  father  had  done  so 
before  him;  or  why  the  occupier  of  a  particular 


INTRODUCTORY.  X07 

field  or  of  a  jewel,  when  lying  on  his  death- 
bed, and  no  longer  able  to  maintain  possession, 
should  be  entitled  to  tell  the  rest  of  the  world 
which  of  them  should  enjoy  it  after  him. 
These  inquiries,  it  must  be  owned,  would  be 
useless  and  even  troublesome  in  common  life. 
//  is  well  if  the  mass  of  mankind  will  obey  the 
laws  when  made,  without  scrutinizing  too  nicely 
into  the  reasons  of  making  them.''' 

Note. — The  italics  are  the  authors.  What  a  com- 
mentary on  class  legislation  do  these  few  truthful  utter- 
ances furnish. 

These  few  lines  from  the  second  book  of  the 
"Commentaries"  make  it  clear  that  Blackstone 
could  see  that  there  was  no  sound  reason  why 
a  few  should  own  the  land  and  pass  it  on 
entailed  to  certain  of  their  children  while  the 
rest  should  be  denied  the  right  to  use  the  nat- 
ural resources  of  the  earth.  But  his  philosophy 
was  non -resisting;  whatever  is,  is  good,  and  it 
would  make  trouble  to  question  it.  He  may 
have  seen  clearly  that  the  laws  pertaining  to 
property  were  radically  wrong,  but  it  was  not 
his  purpose  to  raise  a  dissenting  voice,  or  to 
advocate  a  needed  reform ;  he  was  not  of  the 
class  of  the  Roman  Gracchi,  or  of  Henry 
George.  As  a  commentator  then,  Blackstone 
was  but  an  apathetic  reviewer,  seeking  simply 
to  set  forth  the  building  as  it  was,  and  caring 
nothing  for  needful  repairs  or  additions. 


io8  HOW  TO  STUDY  LAW. 

Like  Blackstone,  many  law  writers,  and 
legislators,  and  judges,  of  to-day,  seek  simply 
to  apply  the  old  rules  as  they  were  applied 
by  the  forefathers,  refusing  to  consider  that 
laws  being  for  the  purpose  of  governing  and 
regulating  the  affairs  of  mankind  should  keep 
pace  with  man's  activities  and  adapt  them- 
selves to  the  circumstances  and  conditions 
which  surround  him.  That  the  laws  to-day 
are  lax  in  the  regulation  of  modern  commercial 
industries  and  in  the  controlling  of  a  new  type 
of  malefactors  which  infest  and  prey  upon 
modern  society  is  evident  by  a  perusal  of  the 
following  quotation  from  an  excellent  article 
by  Prof.  Frank  Parsons,  in  the  July,  1901, 
number  of  the  Arena: 

"Slavery  and  serfdom  have  been  abolished. 
Piracy  is  dead.  The  press-gang  has  vanished 
and  thievery  is  trying  to  hide  itself.  Our  prin- 
cipal robbers  do  not  club  their  victims  on  the 
highways,  but  carry  them  in  street  cars  and 
railway  trains,  or  capture  their  money  politely 
with  stocks  and  trusts.  Nothing  has  improved 
more  than  robbery.  Instead  of  a  dangerous 
encounter  with  pistols,  to  get  the  goods  and 
cash  that  two  or  three  travelers  might  have 
with  them,  the  modern  highwayman  builds  a 
railroad  system  with  other  people's  money,  or 
a  gas  or  electric  plant,  or  a  street  railway,  or 
secures  a  telegraph  or  telephone  franchise,  or 
waters  some  stock,   or  gets  a  rebate  on  oil, 


INTRODUCTORY.  109 

beef,  or  wheat,  or  forms  a  giant  trust  and  robs 
the  population  of  a  continent  at  a  stroke. 
Then  the  robber  buys  a  newspaper  or  caresses 
it  with  greenbacks,  and  has  himself  entitled  a 
''Napoleon  of  Fmance, "  while  the  rudimen- 
tary, undeveloped  aggressor  or  peculative  sur- 
vival of  more  primitive  times  who  steals  a  bag 
of  flour  instead  of  a  grain  crop,  or  takes  a  few 
hundred  instead  of  a  million,  has  to  put  up 
with  the  old-time,  uncivilized  name  of  "thief." 
Imprisonment  for  debt  has  been  abolished,  and 
also  imprisonment  for  theft — if  it  is  committed 
according  to  the  law  and  by  methods  approved 
by  the  particular  variety  of  "Napoleon"  hav- 
ing control  of  the  government." 

Almost  every  citizen  of  this  great  Republic 
is  palpably  impressed  with  the  truth  of  Pro- 
fessor Parson's  caustic  comments,  but  a  vast 
number  say  with  Blackstone  that  it  is  useless 
and  troublesome  to  resist  the  "Napoleons"  of 
finance  and  their  unjust  methods.  It  lies  with 
the  students  of  law,  the  statesmen  and  orators 
to  come,  to  arouse  the  common  people,  and 
then  the  law  will  advance  as  it  should. 

C.  E.  C. 


NATURE  OF  LAWS. 
SECTION   II.* 

OF  THE  NATURE  OF  LAWS  IN  GENERAL. 

Law,  in  its  most  general  and  comprehensive 
sense,  signifies  a  rule  of  action,  an^.  is  applied 
indiscriminately  to  all  kinds  of  action,  whether 
animate  or  inanimate,  rational  or  irrational. 
Thus  we  say,  the  laws  of  motion,  of  gravita- 
tion, of  optics,  or  mechanics,  as  well  as  the 
laws  of  nature  and  of  nations  And  it  is  that 
rule  of  action  which  is  prescribed  by  some 
superior,  and  which  the  inferior  is  bound  to 
obey. 

Thus,  when  the  Supreme  Being  formed  the 
universe,  and  created  matter  out  of  nothing, 
he  impressed  certain  principles  upon  that 
matter,  from  which  it  can  never  depart,  and 
without  which  it  would  cease  to  be.  When  he 
put  that  matter  into  motion,  he  established 
certain  laws  of  motion,  tc  which  all  movable 
bodies  must   conform.     And,  to  descend  from 

*  Sections  one  and  four  of  Blackstone's  Introduction 
to  his  Commentaries  have  been  left  out  as  unimportant 
to  the  student  to-day. 

Ill 


lit  HOW   TO   STUDY    LAW. 

the  greatest  operations  to  the  smallest,  when  n 
workman  forms  a  clock,  or  other  piece  of 
mechanism,  he  establishes,  at  his  own  pleasure, 
certain  arbitrary  laws  for  its  direction, — as 
that  the  hand  shall  describe  a  given  space  in  a 
given  time,  to  which  law  as  long  as  the  work 
conforms,  so  long  it  continues  in  perfection, 
and  answers  the  end  of  its  formation. 

If  we  farther  advance,  from  mere  inactive 
matter  to  vegetable  and  animal  life,  we  shall 
find  them  still  governed  by  laws,  more  numer- 
ous indeed,  but  equally  fixed  and  invariable. 
The  whole  progress  of  plants,  from  the  seed  to 
the  root,  and  from  thence  to  the  seed  again ; 
the  method  of  animal  *nutrition,  digestion, 
secretion  and  all  other  branches  of 
'-  ^^^  vital  economy,  are  not  left  to  chance, 
or  the  will  of  the  creature  itself,  but  are  per- 
formed in  a  wondrous  involuntary  manner,  and 
guided  by  unerring  rules  laid  down  by  the 
great  Creator. 

This,  then  is  the  general  signification  of 
law,  a  rule  of  action  dictated  by  some  superior 
being,  and  in  those  creatures  that  have  neither 
the  power  to  think,  nor  to  will,  such  laws 
must  be  invariably  obeyed,  so  long  as  the 
creature  itself  subsists,  for  its  existence  de- 
pends on  that  obedience.  But  laws,  in  their 
more  confined  sense,  and  in  v/hich  it  is  our 
present  business  to  consider  them,  denote  the 
rules,  not  of  action  in  general,  but  of  human 


HOW  TO   STUDY   LAW.  113 

action  or  conduct;  that  is,  the  precepts  by 
which  man,  the  noblest  of  all  sublunary 
beings,  a  creature  endowed  with  both  reason 
and  freewill,  is  commanded  to  make  use  of 
those  faculties  in  the  general  regulation  of  his 
behaviour. 

Man,  considered  as  a  creature,  must  neces- 
sarily be  subject  to  the  laws  of  his  Creator,  for 
he  is  entirely  a  dependent  being.  A  being, 
independent  of  any  other,  has  no  rule  to  pur- 
sue, but  such  as  he  prescribes  to  himself;  but 
a  state  of  dependence  will  inevitably  oblige  the 
inferior  to  take  the  will  of  him  on  whom  he 
depends  as  the  rule  of  his  conduct;  not,  in- 
deed, in  every  particular,  but  in  all  those 
points  wherein  his  dependence  consists.  This 
principle,  therefore,  has  more  or  less  extent 
and  effect,  in  proportion  as  the  superiority  of 
the  one  and  the  dependence  of  the  other  is 
greater  or  less,  absolute  or  limited.  And  conse- 
quently, as  man  depends  absolutely  upon  his 
Maker  for  everything,  it  is  necessary  that  he 
should  in  all  points,  conform  to  his  Maker's 
will. 

This  will  of  his  Maker  is  called  the  law  of 
nature.  For  as  God,  when  he  created  matter, 
endued  it  with  a  principle  of  mobility,  estab- 
lished certain  rules  for  the  perpetual  direction 
of  that  motion,  so,  when  he  created  j.^  , 
man,  and  endued  him  with  freewill  to  L  4  J 
conduct  himself  in  all  parts  of  *life,  he  laid 


114  HOW   TO   STUDY   LAW. 

down  certain  immutable  laws  of  human  na- 
ture, whereby  that  freev/ill  is  in  some  degree 
regulated  and  restrained,  and  gave  him  also 
the  faculty  of  reason  to  discover  the  purport  of 
those  laws. 

Considering  the  Creator  only  as  a  being  of 
infinite  power,  he  was  able  unquestionably  to 
have  prescribed  whatever  laws  he  pleased  to 
his  creature,  man,  however  unjust  or  severe. 
But,  as  he  is  also  a  being  of  infinite  ivisdom^  he 
has  laid  down  only  such  laws  as  were  founded 
in  those  relations  of  justice  that  existed  in  the 
nature  of  things  antecedent  to  any  positive 
precept.  These  arc  the  eternal  immutable 
laws  of  good  and  evil,  to  which  the  Creator 
himself,  in  all  his  dispensations,  conforms; 
and  which  he  has  enabled  human  reason  to 
discover,  so  far  as  they  are  necessary  for  the 
conduct  of  human  actions.  Such,  among 
others,  are  these  principles:  that  we  should 
live  honestly,  should  hurt  nobody,  and  should 
render  to  every  one  his  due ;  to  which  three 
general  precepts  Justinian  (a)  has  reduced  the 
whole  doctrine  of  law. 

But  if  the  discovery  of  these  first  principles 
of  the  law  of  nature  depended  only  upon  the  due 
exertion  of  right  reason,  and  could  not  other- 
wise be  obtained  than  by  a  chain  of  meta- 
physical  disquisitions,    mankind    would    have 

(fl)  Juris  prcBcepta  sunt  hsc,  honeste  vivere,  alterum 
non  loederg  suum  cuigue  tribuere.     Inst.  1.  i.  3 


HOW  TO   STUDY  LAW.  IIS 

wanted  some  inducement  to  have  quickened 
their  inquiries,  and  the  gi  eater  part  of  the 
world  would  have  rested  content  in  mental 
indolence,  and  ignorance,  its  inseparable  com- 
panion. As,  therefore,  the  Creator  is  a  being 
not  only  of  infinite  pozver  and  wisdom,  but  also 
of  infinite  goodness,  he  has  been  pleased  so  to 
contrive  the  constitution  and  frame  of  human- 
ity, that  we  should  want  no  other  prompter  to 
inquire  after  and  pursue  the  rule  of  right,  but 
only  our  own  self-love,  that  universal  principle 
of  action.  For  he  has  so  intimately  connected, 
so  inseparably  interwoven  the  laws  of  eternal 
justice  with  the  happiness  of  each  individual, 
that  the  latter  cannot  be  attained  but  by 
observing  the  former;  and,  if  the  former  be 
punctually  obeyed,  it  cannot  but  induce  the 
latter.  In  consequence  of  which  mu-  ,^  ^ 
tual  connexion  of  justice  and  human  L  4  J 
felicity,  he  *has  not  perplexed  the  law  of 
nature  with  a  multitude  of  abstracted  rules  and 
precepts,  referring  merely  to  the  fitness  or 
unfitness  of  things,  as  some  have  mainly  sur- 
mised, but  has  graciously  reduced  the  rule  of 
obedience  to  this  one  paternal  precept,  "that 
man  should  pursue  his  own  true  and  sub- 
stantial happiness."  This  is  the  foundation  of 
what  we  call  ethics,  or  natural  law;  for  the 
several  articles  into  which  it  is  branched  in 
our  systems,  amount  to  no  more  than  demon- 
strating that  this  or  that  action  tends  to  man's 


Ii6  HOW  TO   STUDY  LAW. 

real  happiness,  and  therefore  very  justly  con- 
cluding^ that  the  performance  of  it  is  a  part  of 
the  law  of  nature ;  or,  on  the  other  hand,  that 
this  or  that  action  is  destructive  of  man's  real 
happiness,  and  therefore  that  the  law  of  nature 
forbids  it. 

This  law  of  nature,  being  coeval  with  man- 
kind, and  dictated  by  God  himself,  is  of  course 
superior  in  obligation  to  any  other.  It  is 
binding  over  all  the  globe,  in  all  countries, 
and  at  all  times:  no  human  laws  are  of  any 
validity,  if  contrary  to  this;  and  such  of  them 
as  are  valid  derive  all  their  force,  and  all  their 
authority,  mediately  or  immediately,  from 
this  original. 

But,  in  order  to  apply  this  to  the  particular 
exigencies  of  each  individual,  it  is  still  neces- 
sary to  have  recourse  to  reason,  whose  office  it 
is  to  discover,  as  was  before  observed,  what 
the  law  of  nature  directs  in  every  circumstance 
of  life,  by  considering  what  method  will  tend 
the  most  effectually  to  our  own  substantial 
happiness.  And  if  our  reason  were  always, 
as  in  our  first  ancestor  before  his  transgres- 
sion, clear  and  perfect,  unruffled  by  passions, 
unclouded  by  prejudice,  unimpaired  by  disease 
or  intemperance,  the  task  would  be  pleasant  and 
easy;  we  should  need  no  other  guide  but  this. 
But  every  man  now  finds  the  contrary  in  his  own 
experience ;  that  his  reason  is  corrupt,  and  his 
understanding  full  of  ignorance  and  error, 


HOW   TO   STUDY   LAW.  II7 

This  has  given  manifold  occasion  for  the 
benign  interposition  of  divine  Providence, 
which,  in  compassion  to  the  frailty,  the  imper- 
fection, and  the  blindness  of  human  reason, 
*hath  been  pleased,  at  sundry  times  and  in 
divers  manners,  to  discover  and  enforce  -^ 
its  laws  by  an  immediate  and  direct  i-  ^  J 
revelation.  The  doctrines  thus  delivered  we 
call  the  revealed  or  divine  law,  and  they  are  to 
be  found  only  in  the  holy  scriptures.  These 
precepts,  when  revealed,  are  found  upon  com- 
parison to  be  really  a  part  of  the  original  law 
of  nature,  as  they  tend  in  all  their  conse- 
quences to  man's  felicity.  But  we  are  not 
from  thence  to  conclude  that  the  knowledge 
of  these  truths  was  attainable  by  reason,  in  its 
present  coiTupted  state;  since  we  find  that, 
until  they  were  revealed,  they  were  hia  from 
the  wisdom  of  ages.  As  then  the  moral  pre- 
cepts of  this  law  are  indeed  of  the  same  orig- 
inal with  those  of  the  law  of  nature,  so  their 
intrinsic  obligation  is  of  equal  strength  and 
perpetuity.  Yet  undoubtedly  the  revealed 
law  is  of  infinitely  more  authenticity  than  that 
moral  system  which  is  framed  by  ethical 
writers,  and  denominated  the  natural  law; 
because  one  is  the  law  of  nature,  expressly 
declared  so  to  be  by  God  himself;  the  other  is 
only  what,  by  the  assistance  of  human  reason, 
we  imagine  to  be  that  law.  If  we  could  be  as 
certain  of  the  latter  as  we  are  of  the  former, 


Ii8  HOW  TO   STUDY   LAW. 

both  would  have  an  equal  authority;  but,  till 
then,  they  can  never  be  put  in  any  competi- 
tion together. 

Upon  these  two  foundations,  the  law  of 
nature  and  the  law  of  revelation,  depend  all 
human  laws,  that  is  to  say,  no  human  laws 
should  be  suffered  to  tontradict  these.  There 
are,  it  is  true,  a  great  number  of  indifferent 
points  in  which  both  the  divine  law  and  the 
natural  leave  a  man  at  his  own  liberty,  but 
which  are  found  necessary,  for  the  benefit  of 
society,  to  be  restrained  within  certain  limits. 
And  herein  it  is  that  human  laws  have  their 
greatest  force  and  eflEicacy;  for,  with  regard  to 
such  points  as  are  not  indifferent,  human  laws 
are  only  declaratory  of,  and  act  in  subordina- 
tion to,  the  former.  To  instance  in  the  case  of 
murder:  tliis  is  expressly  forbidden  by  the 
divine,  and  demonstrably  by  the  natural  law; 
and,  from  these  prohibitions,  arises  the  true 
unlawfulness  of  this  crime.  Those  human 
laws  that  annex  a  punish mentKo  it  do  not  at 
all  increase  its  moral  guilt,  or  *superadd  any 
fresh  obligation,  in  for o  conscicnticB,  to 
^  -'  abstain  from  its  perpetration.  Nay,  if 
any  human  law  should  allow  or  enjoin  us  to 
commit  it,  we  are  bound  to  transgress  that 
human  law,  or  else  we  must  offend  both  the 
natural  and  the  divine.  But,  with  regard  to 
matters  that  are  in  themselves  indifferent,  and 
are   not    commanded   or    forbidden   by   those 


HOW  TO   STUDY   LAW.  119 

superior  laws, — such,  for  instance,  as  export- 
ing of  wool  into  foreign  countries, — here  the 
inferior  legislature  has  scope  and  opptrtunity 
to  interpose,  and  to  make  that  action  unlawful 
which  before  was  not  so. 

If  man  were  to  live  in  a  state  of  nature,  un- 
connected with  other  individuals,  there  would 
be  no  occasion  for  any  other  laws  than  the  law 
of  nature,  and  the  law  of  God.  Neither  could 
any  other  law  possibly  exist:  for  a  law  always 
supposes  some  superior  who  is  to  make  it;  and, 
in  a  state  of  nature,  we  are  all  equal,  without 
any  other  superior  but  Him  who  is  the  author 
of  our  being.  But  man  was  formed  for 
society;  and,  as  is  demonstrated  by  the  writ- 
ers on  this  subject,  {5)  is  neither  capable  of 
living  alone,  nor  indeed  has  the  courage  to  do 
it.  However,  as  it  is  impossible  for  the  whole 
race  of  mankind  to  be  united  in  one  great 
society,  they  must  necessarily  divide  into 
many,  and  form  separate  states,  common- 
wealths, and  nations  entirely  independent  of 
each  other,  and  yet  liable  to  a  mutual  inter- 
course. Hence  arises  a  third  kind  of  law  to 
regulate  this  mutual  intercourse,  called  "the 
law  of  nations,"  which,  as  none  of  these  states 
will  acknowledge  a  superiority  in  the  other, 
cannot  be  dictated  by  any,  but  depends  entirely 
upon  the  rules  of  natural  law,  or  upon  mutual 

(d)  Puflfendorf,  /.  7,  c.  i.  compared  with  Barbeyrac's 
Commentary. 


120  HOW   TO   STUDY   LAW. 

compacts,  treaties,  leagues,  and  agreements 
between  these  several  communities;  in  the 
construction  also  of  which  compacts  we  have 
no  other  rule  to  resort  to,  but  the  law  of 
nature;  being  the  only  one  to  which  all  the 
communities  are  equally  subject:  and  therefore 
the  cival  law  (c)  very  justly  observes,  that 
(juod  natiiralis  ratio  inter  omnes  homines  con- 
stituit,  vocatiir  jus  gentium. 
.^     ,  *Thus  much  I  thought  it  necessary 

-'to  premise  concerning  the  law  of  na- 
ture, the  revealed  law,  and  the  law  of  nations, 
before  I  proceeded  to  treat  more  fully  of  the 
principal  subject  of  this  section,  municipal  or 
civil  law;  tliat  is,  the  rule  by  which  particular 
districts,  communities  or  nations  are  governed ; 
thus  being  defined  by  Justinian,  {d)  ^'■jus  civile 
est  quod  qiiisque  sibi popiilis  constituit.'"  I  call 
it  mwiicipal  law,  in  compliance  with  common 
speech;  for,  though  strictly  that  expression 
denotes  the  particular  customs  of  one  single 
viunicipium  or  free  town,  yet  it  may  with 
sufficient  propriety  be  applied  to  any  one  state 
or  nation,  which  is  governed  by  the  same  laws 
and  customs. 

Municipal  law,  thus  understood,  is  properly 
defined  to  be  "a  rule  of  civil  conduct  pre- 
scribed by  the  supreme  power  in  a  state,  com- 
manding what  is  right  and  prohibiting  what  is 
wrong."       Let   us   endeavour    to   explain    its 

(c)  Ff.  i.  I,  9.  {ji)  Inst.  i.  2    i. 


HOW  TO  STUDY  LAW.  lai 

several  properties,  as  they  arise  out  of  this 
definition.  And,  first,  it  is  a  rule:  not  a 
transient  sudden  order  from  a  superior  to  or 
concerning  a  particular  person ;  but  something 
permanent,  uniform,  and  universal.  There- 
fore a  particular  act  of  the  legislature  to  con- 
fiscate the  goods  of  Titius,  or  to  attaint  him  of 
high  treason,  does  not  enter  into  the  idea  of  a 
municipal  law:  for  the  operation  of  this  act  is 
spent  upon  Titius  only,  and  has  no  relation  to 
the  community  in  general ;  it  is  rather  a  sen- 
tence than  a  law.  But  an  act  to  declare  that 
the  crime  of  which  Titius  is  accused  shall  be 
deemed  high  treason:  this  has  permanency, 
uniformity,  and  universality,  and  therefore  is 
properly  a  rule.  It  is  also  called  a  rule,  to  dis- 
tinguish it  from  advice  or  counsel,  which  we 
are  at  liberty  to  follow  or  not,  as  we  see 
proper,  and  to  judge  upon  the  reasonableness 
or  unreasonableness  of  the  thing  advised: 
whereas  our  obedience  to  the  law  depends  not 
upon  our  approbation,  but  upon  the  maker's 
will.  Counsel  is  only  matter  of  persuasion, 
law  is  matter  of  injunction ;  counsel  acts  only 
upon  the  willing,  law  upon  the  unwilling  also. 
*It  is  also  called  a  rule  to  distinguish  j.^  , 
it  from  a  compact  or  agreement ;  for  a  '■  ■' 
compact  is  a  promise  proceeding  from  us,  law 
is  a  command  directed  to  us.  The  language 
of  a  compact  is,  "I  will,  or  will  not,  do  this;" 
that  of  a  law  is,  "thou  shalt,  or  shalt  not,  do 


122  HOW   TO   STUDY   LAW. 

it."  It  is  true  there  is  an  oblig-ation  which  a 
compact  carries  with  it,  equal  in  point  of  con- 
science to  that  of  a  law;  but  then  the  original 
of  the  obligation  is  different.  In  compacts,  we 
ourselves  determine  and  promise  what  shall  be 
done,  before  we  are  obliged  to  do  it;  in  laws, 
we  are  obliged  to  act  without  ourselves  deter- 
mining or  pr.)mising  any  thing  at  all.  Upon 
these  accounts  law  is  defined  to  be  "a  rule." 

Municipal  law  is  also  "a  rule  of  civil  con- 
duct.'' This  distinguishes  municipal  law  from 
the  natural,  or  revealed;  the  former  of  which 
is  the  rLiIe  of  7«^rrt/ conduct,  and  the  latter  not 
only  the  rule  of  moral  conduct,  but  also  the 
rule  iif  faith.  These  regard  man  as  a  crea- 
ture, and  point  out  his  duty  to  God,  to  him- 
self, and  to  his  neighbour,  considered  in  the 
light  of  an  individual.  But  municipal  or  civil 
la'v  regards  him  also  as  a  citizen,  and  bound  to 
other  duties  towards  his  neighbour  than  those 
of  mere  nature  and  religion;  duties,  which  he 
has  engaged  in  by  enjoying  the  benefits  of  the 
common  union ;  and  which  amount  to  no  more 
than  that  he  do  contribute,  on  his  part,  to  the 
subsistence  and  peace  of  \he  society. 

It  is  likewise  ^^a.rn\e prescribed."  Because  a 
bare  resolution,  confined  in  the  breast  of  the 
legislator,  without  manifesting  itself  by  some 
external  sign,  can  never  be  properly  a  law.  It 
is  requisite  that  this  resolution  be  notified  to 
the  people  who  are  to  obey  it.     But  the  man- 


HOW  TO  STUDY  LAW.  laj 

ner  in  which  this  notification  is  to  be  made,  is 
matter  of  very  great  indifference.  It  may  be 
notified  by  universal  tradition  and  long  prac- 
tice, which  supposes  a  previous  publication, 
and  is  the  case  of  the  common  law  of  England. 
It  may  be  notified  viva  voce,  by  officers  ap- 
pointed for  that  purpose,  as  is  done  with  regard 
to  proclamations,  and  such  acts  of  parliament 
as  are  appointed*  to  be  publicly  read  j.^  , 
in  churches  and  other  assemblies.  It  "^  -^ 
may  lastly  be  notified  by  writing,  printing,  or 
the  like;  which  is  the  general  course  taken 
with  all  our  acts  of  parliament.  Yet,  whatever 
way  is  made  use  of,  it  is  incumbent  on  the 
promulgators  to  do  it  in  the  most  public  and 
perspicuous  manner;  not  like  Caligula,  who 
(according  to  Dio  Cassius)  wrote  his  laws  in  a 
very  small  character,  and  hung  them  upon 
high  pillars,  the  more  effectually  to  ensnare 
the  people.  There  is  still  a  more  unreason- 
able method  than  this,  which  is  called  making 
of  laws  ex  post  facto;  when  after  an  action 
(indifferent  in  itself)  is  committed,  the  legis- 
lator then  for  the  first  time  declares  it  to  have 
been  a  crime,  and  inflicts  a  punishment  upon 
the  person  who  has  committed  it.  Here  it  is 
impossible  that  the  party  could  foresee  that  an 
action  innocent  when  it  was  done,  should  be 
afterwards  converted  to  guilt  by  a  subsequent 
law ;  he  had  therefore  no  cause  to  abstain  from 
it ;  and  all  punishment  for  not  abstaining  must 


124  HOW   TO   STUDY    LAW. 

of  consequence  be  cruel  and  unjust.  (^)  All 
laws  should  be  therefore  made  to  commence 
in  flitter 0,  and  be  notified  before  their  com- 
mencement; which  is  implied  in  the  term 
''prescribed."  But  when  this  rule  is  in  the 
usual  manner  notified  or  prescribed,  it  is  then 
the  subject's  business  to  be  thoroughly 
acquainted  therewith;  for  if  ignorance,  of 
what  he  viight  know,  were  admitted  as  a 
legitimate  excuse,  the  laws  would  be  of  no 
effect,  but  might  always  be  eluded  with  im- 
punity. 

But  farther:  municipal  law  is  "a  rule  of  civil 
conduct  prescribed  by  the  supreme  poiver  in  a 
state."  For  legislature,  as  was  before 
observed,  is  the  greatest  act  of  superiority  that 
can  be  exercised  by  one  being  over  another. 
Wherefore  it  is  requisite  to  the  very  essence  of 
a  law,  that  it  be  made  by  the  supreme  power. 
Sovereignty  and  legislature  are  indeed  con- 
vertible terms;  one  cannot  subsist  without  the 
other. 

*This  will  naturally  lead  us  into  a 
•■  -*  short  inquiry  concerning  the  nature  of 
society  and  civil  government;  and  the  natural 

{e)  Such  laws  among  the  Romans  were  denominated 
prtvilegia,  or  private  laws,  of  which  Cicero  {de  leg.  3, 
ig,  and  in  his  oration  pro  domo,  1 7, )  thus  speaks :  ' '  Veiant 
leges  sacra/ce  vetant  duodecim  tabulce,  leges  privatis 
honiinibus  irrogari ;  id  e7ivn  est  privilegium.  Nemo 
tiiiquatn  ticlit,  nihil  est  crudelius,  nihil  perniciosius, 
nihil  quod  jnintis  hcEc  civitas  ferrc,  pes  sit.'' 


HOW  TO   STUDY   LAW.  125 

inherent  right  that  belongs  to  the  sovereignty 
of  a  state,  wherever  that  sovereignty  be 
lodged,  of  making  and  enforcing  laws. 

The  only  true  and  natural  foundations  of 
society  are  the  wants  and  the  fears  of  indi- 
viduals. Not  that  we  can  believe,  with  some 
theoretical  writers,  that  there  ever  was  a  time 
when  there  was  no  such  thing  as  society  either 
natural  or  civil ;  and  that,  from  the  impulse  of 
reason,  and  through  a  sense  of  their  wants  and 
weaknesses,  individuals  met  together  in  a  large 
plain,  entered  into  an  original  contract,  and 
chose  the  tallest  man  present  to  be  their  gov- 
ernor. This  notion  of  an  actually  existing  un- 
connected state  of  nature,  is  too  wild  to  be 
seriously  admitted:  and  besides  it  is  plainly 
contradictory  to  the  revealed  accounts  of  the 
primitive  origin  of  mankind,  and  their  preser- 
vation two  thousand  years  afterwards ;  both  of 
which  were  effected  by  the  means  of  single 
families.  These  formed  the  first  natural 
society  among  themselves;  which,  every  day 
extending  its -limits,  laid  the  first  though  im- 
perfect rudiments  of  civil  or  political  society: 
and  when  it  grew  too  large  to  subsist  with 
convenience  in  that  pastoral  state,  wherein  the 
patriarchs  appear  to  have  lived,  it  necessarily 
subdivided  itself  by  various  migrations  into 
more.  Afterwards,  as  agriculture  increased, 
which  employs  and  can  maintain  a  much 
greater  number  of  hands,  migrations  became 


126  HOW  TO  STUDY  LAW. 

less  frequent:  and  various  tribes,  which  had 
formerly  separated,  reunited  again ;  sometimes 
by  compulsion  and  conquest,  sometimes  oy 
accident,  and  sometimes  perhaps  by  compact. 
But  though  society  had  not  its  formal  begin- 
ning from  any  convention  of  individuals,  actu- 
ated by  their  wants  and  their  fears ;  yet  it  is 
the  sense  of  their  weakness  and  imperfection 
that  keeps  mankind  together;  that  demon- 
strates the  necessity  of  this  union;  and  that 
therefore  is  the  solid  and  natural  foundation, 
as  well  as  the  cement  of  civil  society.  And 
this  is  what  we  mean  by  the  original  contract 
of  society;  which,  though  perhaps  in  no 
instance  it  has  ever  been  formally  expressed 
at  the  first  institution  of  a  state,  yet  in  nature 
and  reason  must  always  be  understood  and 
|.^  -  implied,  *in  the  very  act  of  associating 
together :  namely,  that  the  whole  should 
protect  all  its  parts,  and  that  every  part  should 
pay  obedience  to  the  will  of  the  whole  or,  in 
other  words,  that  the  community  should  guard 
the  rights  of  each  individual  member,  and  that 
(in  return  for  this  protection)  each  individual 
should  submit  to  the  laws  of  the  community; 
without  which  submission  of  all  it  was  impos- 
sible that  protection  could  be  certainly  ex- 
tended to  any. 

For  when  civil  society  is  once  formed,  gov- 
ernment at  the  same  time  results  of  course,  as 
necessary  to  preserve  and  to  keep  that  society 


HOW   TO   STUDY  LAW.  127 

in  order.  Unless  some  superior  can  be  consti- 
tuted, whose  commands  and  decisions  all  the 
members  are  bound  to  obey,  they  would  still 
remain  as  in  a  state  of  nature,  without  any 
judge  upon  earth  to  define  their  several  rights, 
and  redress  their  several  wrongs.  But,  as  all 
the  members  which  compose  this  society  were 
naturally  equal,  it  may  be  asked,  in  whose 
hands  are  the  reins  of  government  to  be 
entrusted?  To  this  the  general  answer  is 
easy:  but  the  application  of  it  to  particular 
cases  has  occasioned  one-half  of  those  mis- 
chiefs, which  are  apt  to  proceed  from  mis- 
guided political  zeal.  In  general,  all  mankind 
will  agree  that  government  should  be  reposed 
in  such  persons,  in  whom  those  qualities  are 
most  likely  to  be  found,  the  perfection  of 
which  is  among  the  attributes  of  him  who  is 
emphatically  styled  the  Supreme  Being;  the 
three  grand  requisites,  I  mean  of  wisdom,  of 
goodness,  and  of  power:  wisdom,  to  discern 
the  real  interest  of  the  community;  goodness, 
to  endeavour  always  to  pursue  that  real  inter- 
est; and  strength,  or  power,  to  carry  this 
knowledge  atid  intention  into  action.  These 
are  the  natural  foundations  of  sovereignty,  and 
these  are  the  requisites  that  ought  to  be  found 
in  every  well  constituted  frame  of  government. 
How  the  several  forms  of  government  we 
now  see  in  the  world  at  first  actually  began,  is 
matter  of  great  uncertainty,  and  has  occasioned 


X28  HOW  TO  STUDY  LAW. 

infinite  disputes.  It  is  not  my  business  or 
intention  to  enter  into  any  of  them.  However 
they  began,  or  by  *\vhat  right  soever  they 
.  sulisist,  there  is  and  must  be  in  all  of 

'■  -'  them  a  supreme,  irresistible,  absolute, 
uncontrolled  authority,  in  which  the  jura 
sumnii  imperii,  or  the  rights  of  sovereignty, 
reside.  And  this  authority  is  placed  in  those 
hands,  wherein  (according  to  the  opinion  of 
the  founders  of  such  respective  states,  either 
expressly  given,  or  collected  from  their  tacit 
approbation)  the  qualities  requisite  for  suprem- 
acy, wisdom,  goodness,  and  power,  are  the 
most  likely  to  be  found. 

The  political  writers  of  antiquity  will  not 
allow  more  than  three  regular  forms  of  govern- 
ment; the  first,  when  the  sovereign  power  is 
lodged  in  an  aggregate  assembly  consisting  of 
all  the  free  members  of  a  community,  which  is 
called  a  democracy;  the  second,  when  it  is 
lodged  in  a  council,  composed  of  select  mem- 
bers, and  then  it  is  styled  an  aristocracy;  the 
last,  when  it  is  entrusted  in  the  hands  of  a 
single  person,  and  then  it  takes  the  name  of  a 
monarchy.  All  other  species  of  government, 
they  say,  are  either  corruptions  of,  or  reduc- 
ible to,  these  three. 

By  the  sovereign  power,  as  was  before 
observed,  is  meant  the  making  of  laws;  for 
wherever  that  power  resides,  all  others  must 
conform  to  and  be  directed  by  it,  whatever 


HOW   TO   STUDY   LAW.  129 

appearance  the  outward  form  and  administra- 
tion of  the  government  may  put  on.  For  it  is 
at  any  time  in  the  option  of  the  legislature  to 
alter  that  form  and  administration  by  a  new 
edict  or  rule,  and  to  put  the  execution  of  the 
laws  into  whatever  hands  it  pleases;  by  con- 
stituting one  or  a  few,  or  many  executive  mag- 
istrates :  and  all  the  other  powers  of  the  state 
must  obey  the  legislative  power  in  the  dis- 
charge of  their  several  functions,  or  else  the 
constitution  is  at  an  end. 

In  a  democracy,  where  the  right  of  making 
laws  resides  in  the  people  at  large,  public 
virtue,  or  goodness  of  intention,  is  more  likely 
to  be  found,  than  either  of  the  other  qualities 
of  government.  Popular  assemblies  are  fre- 
quently foolish  in  their  contrivance,  and  weak 
in  their  execution ;  but  generally  mean  to  do 
the  thing  that  is  right  and  just,  and  have 
always  a  degree  of  patriotism  or  pub-  ^^  , 
lie  spirit.  In  *aristocracies  there  is 
more  wisdom  to  be  found,  than  in  the  other 
frames  of  government;  being  composed,  or 
intended  to  be  composed,  of  the  most  experi- 
enced citizens :  but  there  is  less  honesty  than 
in  a  republic,  and  less  strength  than  in  a  mon- 
archy. A  monarchy  is  indeed  the  most  power- 
ful of  any;  for,  by  the  entire  conjunction  of 
the  legislative  and  executive  powers,  all  the 
sinews  of  government  are  knit  together,  and 
united  in  the  hand  of  the  prince:    but  then 


130  HOW   TO   STUDY   LAW. 

there  is  imminent  danger  of  his  employing- 
that  strength  to  improvident  or  oppressive 
purposes. 

Thus  these  three  species  of  government 
have,  all  of  them,  their  several  perfections  and 
imperfections.  Democracies  are  usually  the 
best  calculated  to  direct  the  end  of  a  law ;  aris- 
tocracies to  invent  the  means  by  which  that 
end  shall  be  obtained;  and  monarchies  to 
carry  those  means  into  execution.  And  the 
ancients,  as  was  observed,  had  in  general  no 
idea  of  any  other  permanent  form  of  govern- 
ment but  these  three:  for  though  Cicero  (/) 
declares  himself  of  opinion,  *^esse  optime  consti- 
tutam  rempublicam  qucs  ex  tribiis  generibus 
illis,  regali,  optimo,  et  popularly  sit  modice  con- 
fusa;"  yet  Tacitus  treats  this  notion  of  a 
mixed  government,  formed  out  of  them  all, 
and  partaking  of  the  advantages  of  each,  as  a 
visionary  whim,  and  one  that,  if  effected,  could 
never  be  lasting  or  secure,  {g) 

But,  happily  for  us  of  this  island,  the  British 
constitution  has  long  remained,  and  I  trust 
will  long  continue,  a  standing  exception  to  the 
truth  of  this  observation.  For,  as  with  us  the 
executive  power  of   the  laws  is  lodged  in   a 


{/)  In  his  fragments,  de  rep.  I.  2. 

(g)  Cunctas  nationes  et  urbes  populus  aut  primores, 
aut  singuli  regunt;  delect  a  ex  his  et  constituta  repub- 
ItccE forma  laudarifacilius  quam  evenire,  vel,  sievtnit, 
fiaud  diuturna  esse  potest.       Ann.  I.  4. 


HOW   TO   STUDY   LAW.  131 

single  person,  they  have  all  the  advantages  of 
strength  and  dispatch,  that  are  to  be  found  in 
the  most  absolute  monarchy :  and  as  the  legis- 
lature of  the  kingdom  is  entrusted  to  three  dis- 
tinct powers,  entirely  independent  of  each 
other;  first,  the  king;  secondly,  the  lords 
spiritual  and  temporal,  which  is  an  aristo- 
cratical  assembly  of  persons  selected  for  their 
piety,  *their  birth,  their  wisdom,  their  -^ 
valour,  or  their  property ;  and,  thirdly,  L  5  J 
the  House  of  Commons,  freely  chosen  by  the 
people  from  among  themselves^  which  makes  it 
a  kind  of  democracy :  as  this  aggregate  body, 
actuated  by  different  springs,  and  attentive  to 
different  interests,  composes  the  British  parlia- 
ment, and  has  the  supreme  disposal  of  every 
thing;  there  can  no  inconvenience  be  at- 
tempted by  either  of  the  three  branches,  but 
will  be  withstood  by  one  of  the  other  two; 
each  branch  being  armed  with  a  negative 
power,  sufficient  to  repel  any  innovation 
which  it  shall  think  inexpedient  or  dangerous. 
Here  then  is  lodged  the  sovereignty  of  the 
British  constitution ;  and  lodged  as  beneficially 
as  is  possible  for  society.  For  in  no  other 
shape  could  we  be  so  certain  of  finding  the 
three  great  qualities  of  government  so  well  and 
so  happily  united.  If  the  supreme  power 
were  lodged  in  any  one  of  the  three  branches 
separately,  we  must  be  exposed  to  the  incon- 
veniences of  either  absolute  monarchy,  aristoc- 


132  HOW   TO   STUDY   LAW. 

racy,  or  democracy;  and  so  want  two  of  the 
three  principal  ingredients  of  good  polity; 
either  virtue,  wisdom  or  power.  If  it  were 
lodged  in  any  two  of  the  branches;  for 
instance,  in  the  king  and  house  of  lords,  our 
iaws  might  be  providently  made,  and  well 
executed,  but  they  might  not  always  have  the 
good  of  the  people  in  view;  if  lodged  in  the 
king  and  commons  we  should  want  that  circum- 
spection and  mediatory  caution,  which  the  wis- 
dom of  the  peers  is  to  afford:  if  the  supreme 
rights  of  legislature  were  lodged  in  the  two 
houses  only,  and  the  king  had  no  negative 
upon  their  proceedings,  they  might  be 
tempted  to  encroach  iipon  the  royal  preroga- 
tive, or  perhaps  to  abolish  the  kingly  office, 
and  thereby  weaken  (if  not  totally  destroy)  the 
strength  of  the  executive  power.  But  the  con- 
stitutional government  of  this  island  is  so 
admirably  tempered  and  compounded,  that 
nothing  can  endanger  or  hurt  it,  but  destroy- 
ing the  equilibrium  of  power  between  one 
branch  of  tb.c  legislature  and  the  rest.  For  if 
ever  it  should  happen  that  the  independence  of 
any  one  of  the  three  should  be  lost,  or  that  it 
should  become  subservient  to  the  views  of 
either  of  the  other  two,  there  would  *soon  be 
r .  -,  an  end  of  our  constitution.  The  legis- 
'■  -'  lature  would  be  changed  from  that, 
which  (upon  the  supposition  of  an  original 
contract,  either  actual  or  implied)  is  presumed 


HOW  TO   STUDY   LAW.  133 

to  have  been  originally  set  up  by  the  general 
consent  and  fundamental  act  of  the  society; 
and  such  a  change,  however  affected  is,  accord- 
ing to  Mr.  Locke,  {h)  (who  perhaps  carries  his 
theory  too  far,)  at  once  an  entire  dissolution 
of  the  bands,  of  government;  and  the  people 
are  thereby  reduced  to  a  state  of  anarchy, 
with  liberty  to  constitute  to  themselves  a  new 
legislative  power. 

Having  thus  cursorily  considered  the  usual 
three  species  of  government,  and  our  own  sin- 
gfular  constitution,  selected  and  compounded 
from  them  all,  I  proceed  to  observe,  that,  as 
the  power  of  making  laws  constitutes  the 
supreme  authority,  so  wherever  the  supreme 
authority  in  any  state  resides,  it  is  the  right  of 
that  authority  to  make  laws;  that  is,  in  the 
words  of  our  definition,  to  prescribe  the  rule  of 
civil  action.  And  this  may  be  discovered  from 
the  very  end  and  institution  of  civil  states. 
For  a  state  is  a  collective  body,  composed  of  a 
multitude  of  individuals,  united  for  their 
safety  and  convenience,  and  intending  to  act 
together  as  one  man.  If  it  therefore  is  to  act 
as  one  man,  it  ought  to  act  by  one  uniform 
will.  But,  inasmuch  as  political  communities 
are  made  up  of  many  natural  persons,  each  of 
whom  has  his  particular  will  and  inclination, 
these  several  wills  cannot  by  any  natural 
union  be  joined  together,  or  tempered  and  dis- 

(h)  On  government,  part  2.  sec.  212. 


134  HOW  TO  STUDY  LAW. 

posed  into  a  lasting  harmony,  so  as  to  consti- 
tute and  produce  that  one  uniform  will  of  the 
whole.  It  can  therefore  be  no  otherwise  pro- 
duced than  by  3, political  union;  by  the  consent 
of  all  persons  to  submit  their  own  private  wills 
to  the  will  of  one  man,  or  of  one  or  more 
assemblies  of  men,  to  whom  the  supreme 
authority  is  entrusted;  and  this  will  of  that 
one  man,  or  assemblage  of  men,  is  in  different 
states,  according  to  their  different  constitu- 
tions, understood  to  be  law. 

Thus  far  as  to  the  right  of  the  supreme 
r*  1  power  to  make  laws;  but  farther,  it  is 
'■  -"  its  duty  likewise.  For  since  the  *re- 
spective  members  are  bound  to  conform 
themselves  to  the  will  of  the  state,  it  is  expe- 
dient that  they  receive  directions  from  the  state 
declaratory  of  its  will. 

But,  as  it  is  impossible,  in  so  great  a  multi- 
tude, to  give  injunctions  to  every  particular 
man,  relative  to  each  particular  action  it  is 
therefore  incumbent  on  the  state  to  establish 
general  rules,  for  the  perpetual  information 
and  direction  of  all  persons  in  all  points, 
whether  of  positive  or  negative  duty.  And 
this  in  order  that  every  man  may  know  what 
to  look  upon  as  his  own,  what  as  another's; 
what  absolute  and  what  relative  duties  are 
required  at  his  hands;  what  is  to  be  esteemed 
honest,  dishonest,  or  indifferent;  what  degree 
every  man  retains  of  his  natural  liberty ;  what 


How  TO  STUDY  LAW.  !$$ 

he  has  given  up  as  the  price  of  the  benefits  of 
society;  and  after  what  manner  each  person  is 
to  moderate  the  use  and  exercise  of  those 
rights  which  the  state  assigns  him,  in  order  to 
promote  and  secure  the  public  tranquillity. 

From  what  has  been  advanced,  the  truth  of 
the  former  branch  of  our  definition,  is  (I  trust) 
sufficiently  evident;  that  '''■municipal  laiv  is  a 
rule  of  civil  conduct  prescribed  by  the  supreme 
power  in  a  state.''  I  proceed  now  to  the  latter 
branch  of  it;  that  it  is  a  rule  so  prescribed, 
^'■commanding  what  is  right ^  and  prohibiting 
what  is  ivrofig." 

Now  in  order  to  do  this  completely,  it  is  first 
of  all  necessary  that  the  boundaries  of  right 
and  wrong  be  established  and  ascertained  by 
law.  And  when  this  is  once  done,  it  will  fol- 
low of  course  that  it  is  likewise  the  business 
of  the  law,  considered  as  a  rule  of  civil  con- 
duct, to  enforce  these  rights,  and  to  restrain  or 
redress  these  wrongs.  It  remains  therefore 
only  to  consider  in  what  manner  the  law  is 
said  to  ascertain  the  boundaries  of  right  and 
wrong;  and  the  methods  which  it  takes  to 
command  the  one  and  prohibit  the  other. 

For  this  purpose  every  law  may  be  said  to 
consist  of  several  parts:  one  declaratory; 
whereby  the  rights  to  be  observed,  and  the 
wrongs  to  be  eschewed,  are  clearly  defined 
and  *laid  down:  another,  directory:  ^ 
whereby  the  subject  is  instructed  and      L  54J 


136  HOW  TO    STUDY  LAW. 

enjoined  to  observe  those  rights  and  to  abstain 
from  the  commission  of  those  wrongs:  a 
third,  remedial;  whereby  a  method  is  pointed 
out  to  recover  a  man's  private  rights,  or 
redress  his  private  wrongs :  to  which  may  be 
added  a  fourth,  usually  termed  the  sanction  or 
vindicatory  \ir2cciQ\v  of  the  law;  whereby  it  is 
signified  what  evil  or  penalty  shall  be  incurred 
by  such  as  commit  any  public  wrongs,  and 
transgress  or  neglect  their  duty. 

With  regard  to  the  first  of  these,  the  declar- 
atory part  of  the  municipal  law,  this  depends 
not  so  much  upon  the  law  of  revelation  or  of 
nature,  as  upon  the  wisdom  and  will  of  the 
legislator.  This  doctrine,  which  before  was 
slightly  touched,  deserves  a  more  particular 
explication.  Those  rights  then  which  God 
and  nature  have  established,  and  are  therefore 
called  natural  rights,  such  as  are  life  and  lib- 
erty, need  not  the  aid  of  human  laws  to  be  more 
effectually  invested  in  every  man  than  they 
are;  neither  do  they  receive  any  additional 
strength  when  declared  by  the  municipal  laws 
to  be  inviolable.  On  the  contrary,  no  human 
legislature  has  power  to  abridge  or  destroy 
them,  unless  the  owner  shall  himself  commit 
some  act  that  amounts  to  a  forfeiture.  Neither 
do  divine  or  natural  duties  (such  as,  for 
instance,  the  worship  of  God,  the  maintenance 
of  children  and  the  like)  receive  any  stronger 
sanction  from  being  also  declared  to  be  duties 


HOW  TO  STUDY  LAW.  137 

by  the  law  of  the  land.  The  case  is  the  same 
as  to  crimes  and  misdemeanors,  that  are  for- 
bidden by  the  superior  laws,  and  therefore 
styled  mala  in  se,  such  as  murder,  theft,  and 
perjury;  which  contract  no  additional  turpi- 
tude from  being  declared  unlawful  by  the 
inferior  legislature.  For  that  legislature  in  all 
these  cases  acts  only,  as  was  before  observed, 
in  subordination  to  the  great  lawgiver,  tran- 
scribing and  publishing  his  precepts.  So  that, 
upon  the  whole,  the  declaratory  part  of  the 
municipal  law  has  no  force  or  operation  at  all, 
with  regard  to  actions  that  are  naturally  and 
intrinsically  right  or  wrong.  *But,  with  re- 
gard to  things  in  themselves  indiffer-  -^ 
ent,  the  case  is  entirely  altered.  These  I-  55J 
become  either  right  or  wrong,  just  or  unjust, 
duties  or  misdemeanors,  according  as  the  munic- 
ipal legislator  sees  proper,  for  promoting  the 
welfare  of  the  society,  and  more  effectually 
carrying  on  the  purposes  of  civil  life.  Thus 
our  own  common  law  has  declared,  that  the 
goods  of  the  wife  do  instantly  upon  marriage 
become  the  property  and  right  of  the  hus- 
band; and  our  statute  law  has  declared  all 
monopolies  a  public  offence:  yet  that  right, 
and  this  offence,  have  no  foundation  in  nature, 
but  are  merely  created  by  the  law,  for  the 
purpose  of  civil  society.  And  sometimes, 
where  the  thing  itself  has  its  rise  from  the  law 
of   nature,    the   particular   circumstances    and 


138  HOW  TO  STUDY  LAW. 

mode  of  doing  it  becomes  right  or  wrong,  as 
the  laws  of  the  land  shall  direct.  Thus,  for 
instance,  in  civil  duties;  obedience  to  superiors 
is  the  doctrine  of  revealed  as  well  as  natural 
religion:  but  who  those  superiors  shall  be, 
and  in  what  circumstances,  or  to  what  de- 
grees they  shall  be  obeyed,  it  is  the  province 
of  human  laws  to  determine.  And  so,  as  to 
injuries  or  crimes,  it  must  be  left  to  our  own 
legislature  to  decide,  in  what  cases  the  seizing 
another's  cattle  shall  amount  to  a  trespass  or  a 
theft;  and  where  it  shall  be  a  justifiable  action, 
as  when  a  landlord  takes  them  by  way  of  dis- 
tress for  rent. 

Thus  much  for  the  declaratory  part  of  the 
municipal  law:  and  the  directory  ^\.2C!\(\&  much 
upon  the  same  footing;  for  this  virtually 
includes  the  former,  the  declaration  being 
usually  collected  from  the  direction.  The  law 
that  says,  "thou  shalt  not  steal,"  implies  a 
declaration  that  stealing  is  a  crime.  And  we 
have  seen  (?)  that,  in  things  naturally  indiffer- 
ent, the  very  essence  of  right  and  wrong  de- 
pends upon  the  direction  of  the  laws  to  do  or 
omit  them. 

The  remedial  part  of  a  law  is  so  necessary  a 
consequence  of  the  former  two,  that 
'^  -'  laws  must  be  very  vague  and  imper- 
fect *without  it.  For  in  vain  would  rights  be 
declared,  in  vain  directed  to  be  observed,   if 

(?)  See  page  43. 


HOW  TO  STUDY  LAW.  139 

tnere  were  no  methoa  of  recovering  and  assert- 
ing those  rights,  when  wrongfully  withheld  or 
invaded.  This  is  what  we  mean  properly, 
when  we  speak  of  the  protection  of  the  law. 
When,  for  instance,  the  declaratory  part  of  the 
law  has  said,  "that  the  field  or  inheritance, 
which  belonged  to  Titius's  father,  is  vested  by 
his  death  in  Titius;"  and  the  directory  part 
has  "forbidden  any  one  to  enter  on  another's 
property,  without  the  leave  of  the  owner;"  if 
Gains  after  this  will  presume  to  take  posses- 
sion of  the  land,  the  remedial  part  of  the  law 
will  then  interpose  its  office;  will  make  Gaius 
restore  the  possession  to  Titius,  and  also  pay 
him  damages  for  the  invasion. 

With  regard  to  the  sanction  of  laws,  or  the 
evil  that  may  attend  the  breach  of  public 
duties,  it  is  observed  that  human  legislators 
have  for  the  most  part  chosen  to  make  the 
sanction  of  their  laws  rather  vindicatory  than 
remuueratory,  or  to  consist  rather  in  punish- 
ments, than  in  actual  particular  rewards. 
Because,  in  the  first  place,  the  quiet  enjoy- 
ment and  protection  of  all  our  civil  rights  and 
liberties,  which  are  the  sure  and  general 
consequence  of  obedience  to  the  municipal 
law,  are  in  themselves  the  best  and  most  valu- 
able of  all  rewards.  Because  also,  were  the 
exercise  of  every  virtue  to  be  enforced  by  the 
proposal  of  particular  rewards,  it  were  impos- 
sible for  any  state  to  furnish  stock  enouah  for 


140  HOW  TO  STUDY  LAW. 

SO  profuse  a  bounty.  And  farther,  because  the 
dread  of  evil  is  a  much  more  forcible  principle 
of  human  actions  than  the  prospect  of  good,  (k) 
For  which  reasons  though  a  prudent  bestow- 
ing of  rewards  is  sometimes  of  exquisite  use, 
yet  we  find  that  those  civil  laws,  which  enforce 
and  enjoin  our  duty,  do  seldom,  if  ever,  pro- 
pose any  privilege  or  gift  to  such  as  obey  the 
law;  but  do  constantly  come  armed  with  a 
penalty  denounced  against  transgressors,  either 
expressly  defining  the  nature  and  quantity  of 
the  punishment,  or  else  leaving  it  to  the  dis- 
cretion of  the  judges,  and  those  who  are 
entrusted  with  the  care  of  putting  the  laws  in 
execution. 

*Of  all  the  parts  of  a  law  the  most 
^  ^  -'  effectual  is  the  vindicatory.  For  it  is 
but  lost  labour  to  say,  "do  this,  or  avoid 
that,"  unless  we  also  declare,  "this  shall  be 
the  consequence  of  your  non-compliance." 
We  must  therefore  observe,  that  the  main 
strength  and  force  of  a  law  consists  in  the 
penalty  annexed  to  it.  Herein  is  to  be  found 
the  principal  obligation  of  human  laws. 

Legislators  and  their  laws  are  said  to  compel 
and  oblige :  not  that  by  any  natural  violence 
they  so  constrain  a  man,  as  to  render  it  impos- 
sible for  him  to  act  otherwise  than  as  they 
direct,  which  is  the  strict  sense  of  obligation; 
but  because,  by  declaring  and  exhibiting  a  pen- 

{k)  Locke,  Hum.  Und.  b.  2.  c.  21. 


HOW  TO  STUDY  LAW.  141 

alty  against  offenders,  they  bring  it  to  pass 
that  no  man  can  easily  choose  to  transgress 
the  law;  since,  by  reason  of  the  impending 
correction,  compliance  is  in  a  high  degree 
preferable  to  disobedience.  And,  even  where 
rewards  are  proposed  as  well  as  punishments 
threatened,  the  obligation  of  the  law  seems 
chiefly  to  consist  in  the  penalty;  for  rewards,  in 
their  nature,  can  only  persuade  and  allure; 
nothing  is  coinpiilsory  but  punishment. 

It  is  true,  it  hath  been  holden,  and  very 
justly,  by  the  principal  of  our  ethical  writ- 
ers, that  human  laws  are  binding  upon  men's 
consciences.  But  if  that  were  the  only  or  most 
forcible  obligation,  the  good  only  would  regard 
the  laws,  and  the  bad  would  set  them  at  defi- 
ance. And,  true  as  this  principle  is,  it  must 
still  be  understood  with  some  restriction.  It 
holds,  I  apprehend,  as  to  rights;  and  that, 
when  the  law  has  determined  the  field  to 
belong  to  Titius,  it  is  matter  of  conscience  no 
longer  to  withhold  or  to  invade  it.  So  also  in 
regard  to  natural  duties,  and  such  offences  as 
are  mala  in  se:  here  we  are  bound  in  con- 
science; because  we  are  bound  by  superior  laws, 
before  those  human  laws  were  in  being,  to 
perform  the  one  and  abstain  from  the  other. 
But  in  relation  to  those  laws,  which  enjoin 
only  positive  duties,  and  forbid  only  such 
things  as  are  not  mala  in  se,  but  mala  pro- 
hibita   merely,  without  any  intermixture    of 


I4i  HOW  TO  STUDY  LAW. 

,  moral  guilt,*  annexing  a  penalty  to  non- 
'■  ^  -■  compliance,  (/)  here  I  apprehend  con- 
science is  no  fartlier  concerned,  than  by  direct- 
ing a  submission  to  the  penalty,  in  case  of  our 
breach  of  those  laws:  for  otherwise  the  multi- 
tude of  penal  laws  in  a  state  would  not  only 
be  looked  upon  as  an  impolitic,  but  would 
also  be  a  very  wncked  thing;  if  every  such  law 
were  a  snare  for  the  conscience  of  the  subject. 
But  in  these  cases  the  alternative  is  offered  to 
every  man;  "either  abstain  from  this,  or  sub- 
mit to  such  a  penalty:"  and  his  conscience 
will  be  clear,  whichever  side  of  the  alter- 
native he  thinks  proper  to  embrace.  Thus,  by 
the  statutes  for  preserving  the  game,  a  pen- 
alty is  denounced  against  every  unqualified 
person  that  kills  a  hare,  and  against  every  per- 
son who  possesses  a  partridge  in  August. 
And  so  too,  by  other  statutes,  pecuniary  pen- 
alties are  inflicted  for  exercising  trades  with- 
out serving  an  apprenticeship  tliereto,  for  not 
burying  the  dead  in  woollen,  for  not  perform- 
ing the  statute-work  on  the  public  roads,  and 
for  innumerable  other  positive  misdemeanors. 
Now  these  prohibitory  laws  do  not  make  the 
transgression  a  moral  offence,  or  sin:  the  only 
obligation  in  conscience  is  to  submit  to  the 
penalty  if  levied.  It  must  however,  be 
observed,  that  we  are  here  speaking  of  laws 
that  are  simply  and  purely  penal,  where  the 

(/)  See  Book  II,  p.  420, 


HOW  TO  STUDY  LAW.  143 

thing-  forbidden  or  enjoined  is  wholly  a  matter 
of  indifference,  and  where  the  penalty  inflicted 
is  an  adequate  compensation  for  the  civil  incon- 
venience supposed  to  arise  from  the  offence. 
But  where  disobedience  to  the  law  involves  in 
it  also  any  degree  of  public  mischief  or  private 
injury,  there  it  falls  within  our  former  distinc- 
tion, and  is  also  an  offence  against  con- 
science, [m) 

I  have  now  gone  through  the  definition  laid 
down  of  a  municipal  law;  and  have  shown  that 
it  is  "a  rule  of  civil  conduct  prescribed  by  the 
supreme  power  in  a  state,  commanding  what 
is  right,  and  prohibiting  what  is  wrong;"  in 
the  explication  of  which  I  have  endeavoured  to 
interweave  a  few  useful  principles  concerning 
the  nature  of  civil  government,  and  the  obliga- 
tion of  human  laws.  Before  I  conclude  this 
section,  it  may  not  be  amiss  to  add  a  few  obser- 
vations concerning  the  interpretation  of  laws. 

When  any  doubt  arose  upon  the  construction 
of  the  Roman  laws,  the  usage  was  to  state  the 
case  to  the  emperor  in  writing,  and  take  his  opin- 
ion upon  it.  This  was  certainly  a  bad  method 
of  interpretation.  To  interrogate  the  legisla- 
ture to  decide  particular  disputes  is  not  only 
endless,  but  affords  grea;  room  for  partiality 
and  oppression.     Th  ;  answers  of  the  emperor 

(m)  Lexpiire  pa-nalis  oblzi^'  t  tantum  ad pcenam,  non 
item  ad  ciilpain:  lex panalis  mixta  et  ad  culpam  obit- 
gat,  et  ad  pa;nam.  (Sanderson  de  conscient,  obligat, 
prael.  viii.  §17.  24.) 


144  HOW  TO  STUDY  LAW. 

were  called  his  rescripts,  and  these  had  in  suc- 
ceeding cases  the  force  of  perpetual  laws; 
though  they  ought  to  be  carefully  distinguished 
by  every  rational  civilian  from  those  general 
constitutions  which  had  only  the  nature  of 
things  for  their  guide.  The  emperor  Macrinus, 
as  his  historian  Capitolinus  informs  us,  had 
once  resolved  to  *abolish  these  re- 
^  ^^^  scripts,  and  retain  only  the  general 
edicts:  he  could  not  bear  that  the  hasty  and 
crude  answers  of  such  princes  as  Commodus 
and  Caracalla  should  be  reverenced  as  laws. 
But  Justinian  thought  otherwise,  (;/)  and  he 
has  preserved  them  all.  In  like  manner  the 
canon  laws,  or  decretal  epistles  of  the  popes 
are  all  of  them  rescripts  in  the  strictest  sense. 
Contrary  to  all  true  forms  of  reasoning,  they 
argue  from  particulars  to  generals. 

The  fairest  and  most  rational  method  to 
interpret  the  will  of  the  legislator  is  by  explor- 
ing his  intentions  at  the  time  when  the  law 
was  made,  by  signs  the  most  natural  and  prob- 
able. And  these  signs  are  either  the  words, 
the  context,  the  subject  matter,  the  effects  and 
consequence,  or  the  spirit  and  reason  of  the 
law.     Let  us  take  a  short  view  of  them  all: 

I.  Words  are  generally  to  be  understood  in 
their  usual  and  most  known  signification;  not 
so  much  regarding  the  propriety  of  grammar, 
as  their  general  and  popular  use.    Thus  the  law 

(n)  Jnst.  I.  2.  6. 


HOW  TO  STUDY  LAW.  145 

mentioned  by  Puffendorf  (o)  which  forbad  a 
layman  to  /aj/  /lands  on  a  priest,  was  adjudged 
to  extend  to  him,  who  had  hurt  a  priest  with  a 
weapon.  Again,  terms  of  art,  or  technical 
terms,  must  be  taken  according  to  the  accepta- 
tion of  the  learned  in  each  art,  trade,  and 
science.  So  in  the  act  of  settlement,  where 
the  crown  of  England  is  limited  "to  the  prin- 
cess Sophia,  and  the  heirs  of  her  body,  being 
protestants, "  it  becomes  necessary  to  call  in 
the  assistance  of  lawyers,  to  ascertain  the  pre- 
cise idea  of  the  words,  ''''heirs  of  her  body,'' 
which,  in  a  legal  sense,  comprise  only  certain 
of  her  lineal  descendants. 

*2.  If  words  happen  to  be  still  .^  , 
dubious,  we  may  establish  their  mean-  '-  -' 
ing  from  the  context,  with  which  it  may  be  of 
singular  use  to  compare  a  word  or  a  sentence, 
whenever  they  are  ambiguous,  equivocal  or 
intricate.  Thus  the  proeme,  or  preamble,  is 
often  called  in  to  help  the  construction  of  an 
act  of  parliament.  Of  the  same  nature  and  use 
is  the  comparison  of  a  law  with  other  laws, 
that  are  made  by  the  same  legislator,  that  have 
some  affinity  with  the  subject,  or  that  expressly 
relate  to  the  same  point.  Thus,  when  the  law 
of  England  declares  murder  to  be  a  felony 
without  benefit  of  clergy,  we  must  resort  to  the 
same  law  of  England  to  learn  what  the  benefit 
of  clergy  is ;  and,  when  the  common  law  cen- 

{0)  L.  of  N.  and  N.  5.  13.  3. 


146  HOW  TO  STUDY  LAW. 

sures  simoniacal  contracts,  it  affords  great 
light  to  the  subject  to  consider  what  the  canon 
law  has  adjudged  to  be  simony. 

3.  As  to  the  subject  matter^  words  are  always 
to  be  understood  as  having  a  regard  thereto, 
for  that  is  always  supposed  to  be  in  the  eye  of 
the  legislator,  and  all  his  expressions  directed 
to  that  end.  Thus,  when  a  law  of  our  Edward 
III.  forbids  all  ecclesiastical  persons  to  pur- 
chase provisions  at  Rome,  it  might  seem  to  pro- 
hibit the  buying  of  grain  and  other  victual; 
but,  when  we  consider  that  the  statute  was 
made  to  repress  the  usurpations  of  the  papal 
see,  and  that  the  nominations  to  benefices  by 
the  pope  were  called  provisions,  we  shall  see 
that  the  restraint  is  intended  to  be  laid  upon 
such  provisions  only. 

4.  As  to  the  effects  and  consequences,  the  rule 
is,  that  where  words  bear  either  none,  or  a 
very  absurd  signification,  if  literally  under- 
stood, we  must  a  little  deviate  from  the 
received  sense  of  them.  Therefore  the  Bolog- 
nian  law,  mentioned  by  Puffendorf,  (/)  which 
enacted  "that  whoever  drew  blood  in  the  streets 
should  be  punished  with  the  utmost  severity," 
was  held  after  long  debate  not  to  extend  to  the 
surgeon,  who  opened  tiie  vein  of  a  person  that 
fell  down  in  the  street  with  a  fit. 

r*^  -I  *5-   ^'^t,   lastly,   the  most  universal 

'■     ^-'      and  effectual  way  of  discovering  the 

(p)  I.  5.  c.  12.  §8. 


HOW  TO  STUDY  LAW.  147 

true  meaning  of  a  law,  when  the  words  are 
dubious,  is  by  considering  the  reason  and  s/^irzt 
of  it;  or  the  cause  which  moved  the  legislator 
to  enact  it.  For  when  this  reason  ceases,  the 
law  itself  ought  likewise  to  cease  with  it.  An 
instance  of  this  is  given  in  a  case  put  by  Cicero, 
or  whoever  was  the  author  of  the  treatise 
inscribed  to  Herennius.  (g)  There  was  a  law, 
that  those  who  in  a  storm  forsook  the  ship 
should  forfeit  all  property  therein;  and  that 
the  ship  and  lading  should  belong  entirely  to 
those  who  staid  in  it.  In  a  dangerous  tempest 
all  the  mariners  forsook  the  ship,  except  only 
one  sick  passenger,  who,  by  reason  of  his  dis- 
ease, was  unable  to  get  out  and  escape.  By 
chance  the  ship  came  safe  to  port.  The  sick 
man  kept  possession,  and  claimed  the  benefit 
of  the  law.  Now  here  all  tlie  learned  agree, 
that  the  sick  man  is  not  within  the  reason  of 
the  law;  for  the  reason  of  making  it  was,  to 
give  encouragement  to  such  as  should  venture 
their  lives  to  save  the  vessel ;  but  this  is  a  merit 
which  he  could  never  pretend  to,  who  neither 
staid  in  the  ship  upon  that  account,  nor  con- 
tributed any  thing  to  its  preservation. 

From  this  method  of  interpreting  laws,  by 
the  reason  of  them,  arises  what  we  call  equity, 
which  is  thus  defined  by  Grotius:  (r)  "the 
corrections  of  that  wherein  the  law  (by  reason 
of  its  universality,)   is  deficient."     For,  since 

(f )  /.  I.  c.  II.  (r)  De  EqttitatCB,  §3. 


148  HOW  TO  STUDY  LAW. 

in  laws  all  cases  cannot  be  forseen  or  ex- 
pressed, it  is  necessary  that,  when  the  general 
decrees  of  the  law  come  to  be  applied  to  par- 
ticular cases,  there  should  be  somewhere  a 
power  vested  of  defining  those  circumstances, 
which  (had  they  been  foreseen)  the  legislator 
himself  would  have  expressed.  And  these  are 
the  cases  which  according  to  Grotius,  '''lex  non 
exact  e  definite  sed  ar  bitr  to  bo7ii  viri  permit  tit.'" 
Equity  thus  depending,  essentially,  upon  the 
particular  circumstances  of  each  individual 
case,  there  can  be  no  established  *rules  and 
^  fixed  precepts  of  equity  laid  down, 
'-  ^-'  without  destroying  its  very  essence, 
and  reducing  it  to  a  positive  law.  And,  on  the 
other  hand,  the  liberty  of  considering  all  cases 
in  an  equitable  light  must  not  be  indulged  too 
far,  lest  thereby  we  destroy  all  law,  and  leave 
the  decision  of  every  question  entirely  in  the 
breast  of  the  judge.  And  law,  without  equity, 
though  hard  and  disagreeable,  is  much  more 
desirable  for  the  public  good  than  equity  with- 
out law;  which  would  make  every  judge  a 
legislator,  and  introduce  most  infinite  con- 
fusion ;  as  there  would  then  be  almost  as  many 
different  rules  of  action  laid  down  in  our 
courts,  as  there  are  differences  of  capacity  and 
sentiment  in  the  human  mind. 


HOW  TO  STUDY  LAW.  -.49 


SECTION   III. 

OF    THE    LAWS    OF    ENGLAND. 

The  municipal  law  of  England,  or  the  rule 
of  civil  conduct  prescribed  to  the  inhabitants 
of  this  kingdom,  may  with  sufficient  propriety 
be  divided  into  two  kinds:  The  lex  non  scripta, 
the  unwritten,  or  common  law;  and  the  lex 
scripta,  the  written,  or  statute  law. 

The  lex  non  scripta,  or  unwritten  law,  in- 
cludes not  only  general  customs,  or  the  common 
law  properly  so  called ;  but  also  the  particular 
customs,  of  certain  parts  of  the  kingdom;  and 
likewise  those  particular  laws,  that  are  by  cus- 
tom observed  only  in  certain  courts  and  juris- 
dictions. 

When  I  call  these  parts  of  our  law  leges  non 
scriptcB,  I  would  not  be  understood  as  if  all 
those  laws  were  at  present  merely  oral,  or 
communicated  from  the  former  ages  to  the 
present  solely  by  word  of  mouth.  It  is  true 
indeed  that,  in  the  profound  ignorance  of  let- 
ters which  formerly  overspread  the  whole 
western  world,  all  laws  were  entirely  tradi- 
tional, for  this  plain  reason,  because  the  nations 
among  which  they  prevailed  had  but  little  idea 
of  writing.     Thus  the  British  as  well  as  the 


I50  HOW  TO  STUDY  LAW 

Gallic  Druids  committed  all  their  laws  as  well 
as  learning  to  memory;  {a)  and  it  is  said  of  the 
primitive  Saxons,  here  as  well  as  their  brethren 
on  the  continent,  that  lejj-es  sola  memoria  et  iisu 
retinebant.  {b)  But  with  us  at  present,  the 
monuments  and  evidences  of  our  legal  customs 
are  contained  in  the  records  of  the  several 
courts  of  justice,  in  bouks  of  *reports  and 
r*A  1  judicial  decisions,  and  in  the  treatises 
'■  '*-'  of  learned  sages  of  the  profession,  pre- 
served and  handed  down  to  us  from  the  times 
of  highest  antiquity.  However,  I  therefore 
style  these  parts  of  our  law  leges  non  scriptce^ 
because  their  original  institution  and  authority 
are  not  set  down  in  writing  as  acts  of  parlia- 
ment are,  but  they  receive  their  binding  power 
and  the  force  of  laws  by  long  and  immemorial 
usage,  and  by  their  universal  reception 
throughout  the  kingdom.  In  like  manner  as 
Aulus  Gellius  defines  the/?/^  non  script  urn  to  be 
that,  which  is  ''tacito  et  illiterato  hominum 
consensu  et  inoribiis  expressiim.'" 

Our  ancient  lawyers,  and  particularly  For- 
tescue,  {c)  insist  with  abundance  of  warmth 
that  these  customs  are  as  old  as  the  primitive 
Britons,  and  continued  down,  through  the 
several  mutations  of  government  and  inhabit- 
ants to  the  present  time,  unchanged  and  un- 
adulterated.    This  may  be  the  case  as  to  some ; 

{a)  Caes.,  de  b.  G.  lib.  6,  c.  13.     {b)  Spelm.  Gl.  362. 
(0  C.  17. 


■'  HOW  TO  STUDY  LAW.  151 

but  in  general,  as  Mr.  Selden  in  his  notes 
observes,  this  assertion  must  be  understood 
Vi^ith  many  grains  of  allowance;  and  ought 
only  to  signify,  as  the  truth  seems  to  be,  that 
there  never  was  any  formal  exchange  of  one 
system  of  laws  for  another;  though  doubtless, 
by  the  intermixture  of  adventitious  nations, 
the  Romans,  the  Picts,  the  Saxons,  the  Danes, 
and  the  Normans,  they  must  have  insensibly 
introduced  and  incorporated  many  of  their  own 
customs  with  those  that  were  before  estab- 
lished; thereby,  in  all  probability,  improving 
the  texture  and  wisdom  of  the  whole  by  the 
accumulated  wisdom  of  divers  particular  coun- 
tries. Our  laws,  saith  Lord  Bacon,  (d)  are 
mixed  as  our  language ;  and,  as  our  language  is 
so  much  richer,  the  laws  are  the  more  com- 
plete. 

And  indeed  our  antiquaries  and  early  his- 
torians do  all  positively  assure  us,  that  our 
body  of  laws  is  of  this  compounded  nature. 
For  they  tell  us  that  in  the  time  of  Alfred  the 
local  customs  of  the  several  provinces  of  the 
kingdom  were  grown  so  various,  that  he  found 
it  expedient  to  compile  his  Dome-Book,  or  Liber 
Judicialis,  for  the  general  use  of  the  whole 
kingdom.  *This  book  is  said  to  have  been 
extant  so  late  as  the  reign  of  King 
Edward  the  Fourth,  but  is  now  unfor-  *-  ^-' 
tunately  lost.     It  contained,  we  may  probably 

(d )  See  his  proposals  for  a  digest. 


152  HOW  TO  STUDY  LAW. 

suppose,  the  principal  maxims  of  the  common 
law,  the  penalties  for  misdemeanors,  and  the 
forms  of  judicial  procecding-s.  Thus  much 
may  at  least  be  collected  from  that  injunction 
to  observe  it,  which  we  find  in  the  laws  of 
King  Edward  the  elder,  the  son  of  Alfred,  (e) 
''Omnibus  qui  republicce  prcesunt  etiajn  at  que 
etiam  viano^  ut  omnibus  ccquos  se  prcebeant 
j'udices,  perinde  ac  in  judicali  libro  {Saxonice, 
boin-l)ee  )  scriptum  habetur:  nee  quicquani  for- 
7nident  quin  jus  eommune  (Saxoniee,  yolcpihce) 
audacter  liber eque  dicant. ' ' 

But  the  irruption  and  establishment  of  the 
Danes  in  England,  which  followed  soon  after, 
introduced  new  customs,  and  caused  this  code  of 
Alfred  in  many  provinces  to  fall  into  disuse,  or 
at  least  to  be  mixed  and  debased  with  other  laws 
of  a  coarser  alloy ;  so  that,  about  the  beginning 
of  the  eleventh  century,  there  were  three  prin- 
cipal systems  of  laws  prevailing  in  different 
districts:  i.  The  Mereen-Lage,  or  Mercian 
laws,  which  were  observed  in  many  of  the  mid- 
land counties,  and  those  bordering  on  the 
principality  of  Wales,  the  retreat  of  the  ancient 
Britains;  and  therefore  very  probably  inter-" 
mixed  with  the  British  or  Druidical  customs. 
2.  The  West-Saxo7i-Lage,  or  laws  of  the  West 
Saxons,  which  obtained  in  the  counties  to  the 
south  and  west  of  the  island,  from  Kent  to 
Devonshire.     These  were  probably  much  the 


HOW  TO  STUDY  LAW.  I53 

same  with  the  laws  of  Alfred  above  men- 
tioned, being  the  municipal  law  of  the  far  most 
considerable  part  of  his  dominions,  and  partic- 
ularly including  Berkshire,  the  seat  of  his 
peculiar  residence.  3.  The  Dane-Lage,  or 
Danish  law,  the  very  name  of  which  speaks 
its  original  and  composition.  This  was  prin- 
cipally maintained  in  the  rest  of  the  midland 
counties,  and  also  on  the  eastern  coast,  the 
part  most  exposed  to  the  visits  of  that  piratical 
people.  As  for  the  very  northern  provinces, 
they  were  at  that  time  under  a  distinct  gov- 
ernment. (/) 

*Out  of  these  three  laws,  Roger  Hoveden  {g) 
and  Ranulphus  Cestrensis  (//)  informs  r^gg-i 
us.  King  Edward  the  Confessor  ex- 
tracted one  uniform  law,  or  digest  of  laws,  to 
be  observed  throughout  the  whole  kingdom; 
though  Hovenden,  and  the  author  of  an  old 
manuscript  chronicle  {i)  assure  us  likewise 
that  this  work  was  projected  and  begun  by  his 
grandfather  King  Edgar.  And  indeed  a  gen- 
eral digest  of  the  same  nature  has  been  con- 
stantly found  expedient,  and  therefore  put  in 
practice  by  other  great  nations,  which  were 
formed  from  an  assemblage  of  little  provinces, 
governed  by  peculiar  customs,  as  in  Portugal, 
under  King  Edward,  about  the  beginning  of 


(/)  Hal.  Hist.  55.  {g)  In  Hen.  II. 

{h)  In  Edw.  Confessor. 
(/)  In  Seld.  ad  Eadmer,  6. 


154  HOW  TO  STUDY  LAW. 

the  fifteenth  century,  (y^)  In  Spain  under 
Alonzo  X.,  who,  about  the  year  1250,  executed 
the  plan  of  his  father  St.  Ferdinand,  and  col- 
lected all  the  provincial  customs  into  one  uni- 
form law,  in  the  celebrated  code  entitled  Las 
Partidas.{l)  And  in  Sweden,  about  the  same 
era,  when  a  universal  body  of  common  law 
was  compiled  out  of  the  particular  customs 
established  by  the  laghman  of  every  province, 
and  entitled  the  land's  lagh,  being  analogous 
to  the  common  law  of  England,  {in) 

Both  these  undertakings  of  King  Edgar  and 
Edward  the  Confessor  seem  to  have  been  no 
more  than  a  new  edition,  or  fresh  promulga- 
tion, of  Alfred's  code  or  dome-book,  with  such 
additions  and  improvements  as  the  experience 
of  a  century  and  a  half  had  suggested;  for 
Alfred  is  generally  styled  by  the  same  his- 
torians the  leguin  Anglicanariim  conditor,  as 
Edward  the  Confessor  is  the  restitiitor.  These, 
however,  are  the  laws  which  our  histories  so 
often  mention  under  the  name  of  the  laws  of 
Edward  the  Confesser,  which  our  ancestors 
struggled  so  hardly  to  maintain,  under  the 
first  princes  of  the  Norman  line;  and  which 
subsequent  princes  so  frequently  promised  to 
keep  and  restore,  as  the  most  popular  act  they 
could  do,  when  pressed  by  foreign  emer- 
gencies or  domestic  discontents.      These  are 

{k)  Mod.  Un.  Hist.  xxii.  135.        (7)  Ibid.  xx.  211. 
(ni)  Ibid,  xxxiii.  21,  58. 


HOW  TO  STUDY  LAW.  X5S 

the  laws  that  so  vigorously  withstood  *the 
repeated  attacks  of  the  civil  law ;  which  r*Qj-\ 
established  in  the  twelfth  century  a  "^  -" 
new  Roman  empire  over  most  of  the  states  of 
the  continent:  states  that  have  lost,  and  per- 
haps upon  that  account,  their  political  liberties; 
while  the  free  constitution  of  England,  per- 
haps upon  the  same  account,  has  been  rather 
improved  than  debased.  These,  in  short,  are 
the  laws  which  gave  rise  and  original  to  that 
collection  of  maxims  and  customs  which  is  now 
known  by  the  name  of  the  common  law;  a 
name  either  given  to  it  in  contradistinction  to 
other  laws,  as  the  statute  law,  the  civil  law, 
the  law  merchant,  and  the  like;  or,  more  prob- 
ably, as  a  law  common  to  all  the  realm,  the 
/tis  co7nmtme,  or  folcrigh*,  mentioned  by  king 
Edward  the  elder,  after  the  abolition  of  the 
several  provincial  customs  and  particular  laws 
before  mentioned. 

But  though  this  is  the  most  likely  foundation 
of  this  collection  of  maxims  and  customs,  yet 
the  maxims  and  customs,  so  collected,  are  of 
higher  antiquity  than  memory  or  history  can 
reach,  nothing  being  more  difficult  than  to 
ascertain  the  precise  beginning  and  the  first 
spring  of  an  ancient  and  long  established  cus- 
tom. Whence  it  is  that  in  our  law  the  good- 
ness of  a  custom  depends  upon  its  having  been 
used  time  out  of  mind;  or,  in  the  solemnity  of 
our  legal  phrase,  time  whereof  the  memory  of 


iS6  HOW  TO  STUDY  LAW. 

man  runneth  not  to  the  contrary.  This  it  is 
that  gives  it  its  weight  and  authority:  and  of 
this  nature  are  the  maxims  and  customs  which 
compose  the  common  law,  or  lex  nonscripia,  of 
this  kingdom. 

This  unwritten,  or  common,  law  is  properly 
distinguishable  into  three  kinds:  i.  General 
customs ;  which  are  the  universal  rule  of  the 
whole  kingdom,  and  form  the  common  law, 
in  its  stricter  and  more  usual  signification. 
2.  Particular  customs;  which,  for  the  most 
part,  affect  only  the  inhabitants  of  particular 
districts.  3.  Certain  particular  laws;  which, 
by  custom,  are  adopted  and  used  by  some  par- 
ticular courts  of  pretty  general  and  extensive 
jurisdiction. 

r*A8i  *^*  ^^  ^^  general    customs,   or    the 

'-  ^  common  law,  properly  so  called;  this 
is  that  law,  by  which  proceedings  and  deter- 
minations in  the  king's  ordinary  courts  of 
justice  are  guided  and  directed.  This,  for  the 
most  part,  settles  the  course  in  which  lands 
descend  by  inheritance ;  the  manner  and  form 
of  acquiring  and  transferring  property;  the 
solemnities  and  obligation  of  contracts;  the 
rules  of  expounding  wills,  deeds,  and  acts  of 
parliament;  the  respective  remedies  of  civil 
injuries;  the  several  species  of  temporal 
offences ;  with  the  manner  and  degree  of  pun- 
ishment; and  an  infinite  number  of  minuter 
particulars,  which  diffuse  themselves  as  exten- 


HOW  TO  STUDY  LAW.  157 

sively  as  the  ordinary  distribution  of  common 
justice  requires.  Thus,  for  example,  that 
there  shall  be  four  superior  courts  of  record, 
the  Chancery,  the  King's  Bench,  the  Common 
Pleas,  and  the  Exchequer; — that  the  eldest  son 
alone  is  heir  to  his  ancestor; — that  property 
may  be  acquired  and  transferred  by  writing; — 
that  a  deed  is  of  no  validity  unless  sealed  and 
delivered ; — that  wills  shall  be  construed  more 
favourably,  and  deeds  more  strictly; — that 
money  lent  upon  bond  is  recoverable  by  action 
of  debt; — that  breaking  the  public  peace  is  an 
offence,  and  punishable  by  fine  and  imprison- 
ment;— all  these  are  doctrines  that  are  not 
set  down  in  any  written  statute  or  ordi- 
nance, but  depend  merely  upon  immemorial 
usage,  that  is,  upon  common  law,  for  their  sup- 
port. 

Some  have  divided  the  common  law  into  two 
principal  grounds  or  foundations:  i.  Estab- 
lished customs ;  such  as  that,  where  there  are 
three  brothers,  the  eldest  brother  shall  be  heir 
to  the  second,  in  exclusion  of  the  youngest: 
and  2.  Established  rules  and  maxims;  as  "that 
the  king  can  do  no  wrong,  that  no  man  shall 
be  bound  to  accuse  himself,"  and  the  like. 
But  I  take  these  to  be  one  and  the  same  thing. 
For  the  authority  of  these  maxims  rests  entirely 
upon  general  reception  and  usage:  and  the 
only  method  of  proving,  that  this  or  that 
maxim  is  a  rule  of  the   common  law,   is  by 


158  HOW  TO  STUDY  LAW. 

^  shewing  that  it  hath  been  always  the 

'-  -*  custom  to  observe  it.  *Buthere  a  very 
natural,  and  very  material,  question  arises: 
how  are  these  customs  and  maxims  to  be 
known  and  by  whom  is  their  validity  to  be 
determined?  The  answer  is,  by  the  judges  in 
the  several  courts  of  justice.  They  are  the 
depositaries  of  the  laws;  the  living  oracles, 
who  must  decide  in  all  cases  of  doubt,  and  who 
are  bound  by  an  oath  to  decide  according  to 
the  law  of  the  land.  Their  knowledge  of  that 
law  is  derived  from  experience  and  study; 
from  the  ''viginti  annorum  liicubrationes,'' 
which  Fortescue  («)  mentions ;  and  from  being 
long  personally  accustomed  to  the  judicial 
decisions  of  their  predecessors.  And  indeed 
these  judicial  decisions  are  the  principal  and 
most  authoritative  evidence,  that  can  be  given, 
of  the  existence  of  such  a  custom  as  shall  form 
a  part  of  the  common  law.  The  judgment 
itself,  and  all  the  proceedings  previous  thereto, 
are  carefully  registered  and  preserved,  under 
the  name  of  records^  in  public  repositories  set 
apart  for  that  particular  purpose;  and  to  them 
frequent  recourse  is  had,  when  any  critical 
question  arises,  in  the  determination  of  which 
former  precedents  may  give  light  or  assist- 
ance. And  therefore,  even,  so  early  as  the 
conquest,  we  find  the  ''''prceteritoruin  me^noria 
eventorum'"   reckoned  up  as  one  of  the  chief 

(«)  Cap.  8. 


HOW  TO  STUDY  LAW.  159 

qualifications  of  those  who  were  held  to  be 
'"''Icgibus patri(E  optime  instituti.'"  {p)  For  it  is 
an  established  rule  to  abide  by  former  pre- 
cedents, where  the  same  points  come  again  in 
litigation:  as  well  to  keep  the  scale  of  justice 
even  and  steady,  and  not  liable  to  waver  with 
every  new  judge's  opinion;  as  also  because  the 
law  in  that  case  being  solemnly  declared  and 
determined,  what  before  was  uncertain,  and 
perhaps  indifferent,  is  now  become  a  perma- 
nent rule  which  it  is  not  in  the  breast  of  any 
subsequent  judge  to  alter  or  vary  from  accord- 
ing to  his  private  sentiments;  he  being  sworn 
to  determine,  not  according  to  his  own  private 
judgment,  but  according  to  the  known  laws 
and  customs  of  the  land ;  not  delegated  to  pro- 
nounce a  new  law,  but  to  maintain  and  ex- 
pound the  old  one.  Yet  this  rule  admits  of 
exception,  where  the  former  determination  is 
most  evidently  contrary  to  reason ;  *much 
more  if  it  be  clearly  contrary  to  the  divine 
law.  But  even  in  such  cases  the  sub-  ^^  -. 
sequent  judges  do  not  pretend  to  make 
a  new  law,  but  to  vindicate  the  old  one  from 
misrepresentation.  For  if  it  be  found  that  the 
former  decision  is  manifestly  absurd  or  unjust, 
it  is  declared,  not  that  such  a  sentence  was  bad 
law;  but  that  it  was  not  law;  that  is,  that  it  is 
not  the  established  custom  of  the  realm,  as  has 
been  erroneously  determined.     And  hence  it  is 

(<?)  Seld.  Review  of  Tith.  c.  8.  ' 


l6o  HOW  TO  STUDY  LAW. 

that  our  lawyers  are  with  justice  so  copious  in 
their  encomiums  on  the  reason  of  the  common 
law;  that  they  tell  us,  that  the  law  is  the  per- 
fection of  reason,  that  it  always  intends  to  con- 
form thereto,  and  that  what  is  not  reason  is 
not  law.  Not  that  the  particular  reason  of 
every  rule  in  the  law  can  at  this  distance  of 
time  be  always  precisely  assigned;  but  it  is 
sufficient  that  there  be  nothing  in  the  rule  flatly 
contradictory  to  reason,  and  then  the  law  will 
presume  it  to  be  well  founded.  (/ )  And  it 
hath  been  an  ancient  observation  in  the  laws 
of  England,  that  whenever  a  standing  rule  of 
law,  of  which  the  reason  perhaps  could  not  be 
remembered  or  discerned,  hath  been  wantonly 
broken  in  upon  by  statutes  or  new  resolutions, 
the  wisdom  of  the  rule  hath  in  the  end  appeared 
from  the  inconveniences  that  have  followed  the 
innovation. 

The  doctrine  of  the  law  then  is  this:  that 
precedents  and  rules  must  be  followed,  unless 
flatly  absurd  or  unjust:  for  though  their  reason 
be  not  obvious  at  first  view,  yet  we  owe  such  a 
deference  to  former  times  as  not  to  suppose 
that  they  acted  wholly  without  consideration. 
To  illustrate  this  doctrine  by  examples.  It 
has  been  determined  time  out  of  mind,  that  a 

(/)  Herein  agreeing  with  the  civil  law,  Ff.  i.  3.  20.  21. 
" Non  0))2nitiin,  quce  a  majoribus  nosiris  consiituta 
sunt,  ratio-reddi potest.  Et  ideo  rationes  eorum,  quce 
constituuntur,  inquiri  no7i  oporiet:  alioquiti  multa  ex 
his  quae  certa  sujit,  subvertuntur." 


HOW  TO  STUDY   LAW.  16 1 

brother  of  the  half  blood  shall  never  succeed  as 
heir  to  the  estate  of  his  half  brother,   but  it 
shall   rather    escheat   to    the   king,    or    other 
superior    lord.      Now  this    is  a  positive  law, 
fixed  and  established  by  custom,  which  custom 
is  evidenced  by  judicial  decisions;    and  there- 
fore can  never  be  departed  from  by  any  mod- 
ern judge  without  a  breach  of  his  oath      ^^ 
and   *the   law.       For   herein    there   is      L  7iJ 
nothing  repugnant  to  natural  justice ;    though 
the   artificial   reason   of    it,    drawn    from   the 
feudal  law,  may  not  be  quite  obvious  to  every 
body.       And     therefore,     though     a    modern 
judge,  on  account  of  a  supposed  hardship  upon 
the  half  brother,  might  wish  it  had  been  other- 
wise settled,  yet  it  is  not  in  his  power  to  alter 
it.     But  if  any  court  were  now  to  determine, 
that  an  elder  brother  of  the  half  blood  might 
enter  upon  and  seize  any  lands  that  were  pur- 
chased by  his  younger  brother,  no  subsequent 
judges   would   scruple   to    declare   that    such 
prior  determination  was  unjust,  was  unreason- 
able, and  therefore  was  not  latv.     So  that  the 
law,   and   the   opinion   of  the  fudge,    are    not 
always  convertible  terms,  or  one  and  the  same 
thing;    since    it  sometimes  may  happen  that 
the    judge    may    mistake   the    law.       Upon    the 
whole,  however  we  may  take  it  as  a  general 
rule,  "that  the  decisions  of  courts  of  justice 
are  the  evidence  of  what  is  common  law:"  in 
the  same  manner  as,  in  the  civil  law,  what  the 


l62  HOW  TO  STUDY  LAW. 

emperor  had  once  determined  was  to  serve  as 
a  guide  for  the  future,  {q) 

The  decisions  therefore  of  courts  are  held  in 
the  highest  regard,  and  are  not  only  preserved 
as  authentic  records  in  the  treasuries  of  the 
several  courts,  but  are  handed  out  to  public 
view  in  the  numerous  volumes  of  reports 
which  furnish  the  lawyer's  library.  These 
reports  are  histories  of  the  several  cases,  with 
a  short  summary  of  the  proceedings,  which 
are  preserved  at  large  in  the  record;  the  argu- 
ments on  both  sides  and  the  reasons  the  court 
gave  for  its  judgment;  taken  down  in  short 
notes  by  persons  present  at  the  determination. 
And  these  serve  as  indexes  to,  and  also  to  ex- 
plain, the  records,  which  always,  in  matters  of 
consequence  and  nicety,  the  judges  direct  to 
be  searched.  The  reports  are  extant  in  a 
regular  series  from  the  reign  of  King  Edward 
the  Second  inclusive;  and,  from  his  time,  to 
that  of  Henry  the  *Eighth,  were  taken  .^  , 
by  the  prothonotaries,  or  chief  scribes 
of  the  court,  at  the  expense  of  the  crown,  and 
published  annually,  whence  they  are  known 
under  the  denomination  of  the  year  books. 
And  it  is  much  to  be  wished  that  this  bene- 

{q)  "St  iviper talis  majestas  causam  co^nitiotialiter 
examinavertt,  et  partibus,  cominus  constituiis  senten- 
tian  dixerit,  omnes  omnino  Judices,  qui  sub  nostra 
vnperio  sunt,  sciant  hanc  esse  legem,  non  solum  illi 
causae  pro  qua  producta  est,  sed  et  in  omnibus  simii- 
ibus."      C.  I.  14.  la. 


HOW  TO  STUDY  LAW.  163 

ficial  custom  had,  under  proper  regulations, 
been  continued  to  this  day;  for,  though  King 
James  the  First,  at  the  instance  of  Lord  Bacon, 
appointed  two  reporters  (r)  with  a  handsome 
stipend  for  this  purpose,  yet  that  wise  institu- 
tion was  soon  neglected,  and  from  the  reign  of 
Henry  the  Eighth  to  the  present  time  this  task 
has  been  executed  by  many  private  and  con- 
temporary hands;  who  sometimes  through 
haste  and  inaccuracy,  sometimes  through  mis- 
take and  want  of  skill,  have  published  very 
crude  and  imperfect  (perhaps  contradictory) 
accounts  of  one  and  the  same  determination. 
Some  of  the  most  valuable  of  the  ancient  re- 
ports are  those  published  by  Lord  Chief- 
Justice  Coke ;  a  man  of  infinite  learning  in  his 
profession,  though  not  a  little  infected  with 
the  pedantry  and  quaintness  of  the  times  he 
lived  in,  which  appear  strongly  in  all  his 
works.  However,  his  writings  are  so  highly 
esteemed,  that  they  are  generally  cited  without 
the  author's  name,  (s) 

Besides  these  reporters,  there  are  also  other 

(r)  FaL  15  Jac.  I.  p.  18.     17.  Rym.  26. 

{s)  His  reports,  for  instance,  are  styled  kclt  e^oxvv,  the 
reports;  and,  in  quoting  them,  we  usually  say,  i  or  2 
Rep.  not  I  or  2  Coke's  Rep.  as  in  citing  other  authors. 
The  reports  of  Judge  Croke  are  also  cited  in  a  peculiar 
manner,  by  the  names  of  those  princes,  in  whose  reigns 
the  cases  reported  in  his  three  volumes  were  determined; 
viz.:  Queen  Elizabeth,  King  James,  and  King  Charles 
the  First:  as  well  as  by  the  number  of  each  volume. 
For  sometimes  we  call  them  i,  2.  and  3.  Cro.  but  moro 
commonly  Cro.  Eliz.,  Cro.  Jac.  and  Cro.  Car. 


1 64  HOW  TO  STUDY  LAW. 

authors,  to  whom  great  veneration  and  respect 
is  paid  by  the  students  of  the  common  law. 
Such  are  Glanvil  and  Bracton,  Britton  and 
Fleta,  Hengham  and  Littleton,  Statham, 
Brooke,  Fitzherbert,  and  Staundforde,  with 
some  others  of  ancient  date;  whose  treatises 
are  cited  as  authority,  and  are  evidence  that 
cases  have  formerly  happened  in  which  such 
and  such  points  were  determined,  which  are 
now  become  settled  and  first  principles.  One 
of  the  last  of  these  methodical  writers  in  point 
of  time,  whose  works  are  of  any  intrinsic 
authority  in  the  courts  of  justice,  and  do  not 
entirely  depend  on  the  strength  of  their  quota- 
tions from  older  authors,  is  the  *same  learned 
judge  we  have  just  mentioned,  Sir  Edward 
Coke;  who  hath  written  four  volumes  of  insti- 
P^  ,  tutes,  as  he  is  pleased  to  call  them, 
^  -'  though  they  have  little  of  the  institu- 
tional method  to  warrant  such  a  title.  The 
first  volume  is  a  very  extensive  comment  upon 
a  little  excellent  treatise  of  tenures,  compiled 
by  Judge  Littleton  in  the  reign  of  Edward  the 
Fourth.  This  comment  is  a  rich  mine  of  valu- 
able common  law  learning,  collected  and 
heaped  together  from  the  ancient  reports  and 
year  books,  but  greatly  defective  in  method.  (/) 
The  second  volume  is  a  comment  upon  many 
old  acts  of  parliament,  without  any  systematical 

(/)  It  is  usually  cited  either  by  the  name  of  Co.  Litt.  or 
as  I  Inst. 


HOW  TO  STUDY  LAW.  165 

order;  the  third  a  more  methodical  treatise  of 
the  pleas  of  the  crown;  and  the  fourth  an 
account  of  the  several  species  of  courts,  (n) 

And  thus  much  for  the  first  ground  and  chief 
corner  stone  of  the  laws  of  England,  which  is 
general  immemorial  custom,  or  common  law, 
from  time  to  time  declared  in  the  decisions  of 
the  courts  of  justice;  which  decisions  are  pre- 
served among  our  public  records,  explained  in 
our  reports,  and  digested  for  general  use  in  the 
authoritative  writings  of  the  venerable  sages 
of  the  law. 

The  Roman  law,  as  practised  in  the  times  of 
its  liberty,  paid  also  a  great  regard  to  custom ; 
but  not  so  much  as  our  law;  it  only  then 
adopting  it,  when  the  written  law  was  de- 
ficient. Though  the  reasons  alleged  in  the 
digest  {v)  will  fully  justify  our  practice,  in 
making  it  of  equal  authority  with,  when  it  is 
not  contradicted  by,  the  written  law.  "For, 
since  (says  Julianus,)  the  written  law  binds  us 
for  no  other  reason  but  because  it  is  approved 
by  the  judgment  of  the  people,  therefore  those 
laws  which  the  people  have  approved  without 
writing  ought  also  to  bind  every  body.  For 
where  is  the  difference,   whether  the  people 

{u)  These  are  cited  as  2,  3,  or  4  Inst,  without  any 
author's  name.  An  honary  distinction,  which,  we 
observed,  is  paid  to  the  works  of  no  other  writer ;  the 
generality  of  reports  and  other  tracts  being  quoted  in  the 
name  of  the  compiler,  as  2  Ventris,  4  Leonard,  1  Siderfin, 
and  the  like.  (v)  Ff.  1.3.  32. 


l66  HOW  TO  STUDY  LAW. 

declare  their  *assent  to  a  law  by  suffrage,  or 
.  by  a  uniform  course  of  acting  accor- 
'-  -'  dingly?"  Thus  did  they  reason  while 
Rome  had  some  remains  of  her  freedom;  but, 
when  the  imperial  tyranny  came  to  be  fully 
established,  the  civil  laws  speak  a  very  differ- 
ent language.  ''Quod  principi  placuit  legis 
habct  vigorem,  cum  popiiliis  ei  et  in  eum  omne 
suiun  imperium  et  protestatem  comferat"  says 
Ulpian.  (w)  '■'Imperator  solus  et  conditor  et 
inter pres  legis  existimatur, ' '  says  the  code,  {x) 
And  again,  ''sacrilegii  instar  est  rescripto prin- 
cipis  obviari."  {)')  And  indeed  it  is  one  of  the 
characteristic  marks  of  English  liberty,  that 
our  common  law  depends  upon  custom;  which 
carries  this  internal  evidence  of  freedom  along 
with  it,  that  it  probably  was  introduced  by  the 
voluntary  consent  of  the  people,  {n) 

{w)  Ff.  I.  4.  I.  {x)  C.  I.  14.  12. 

{y)  C.  I.  23.  5. 

(«)  [Lord  Chief-Justice  Wilmot  has  said  that  "the 
statute  ]aw  is  the  will  of  the  legislature  in  writing;  the 
common  law  is  nothing  else  but  statutes  worn  out  by 
time.  All  our  law  began  by  consent  of  the  legislature, 
and  whether  it  is  now  law  by  usage  or  writing  is  the 
same  thing.  2  Wils.  348.  And  statute  law,  and  common 
law,  both  originally  flowed  from  the  same  fountain." 
lb.  350.  And  to  the  same  effect  Lord  Hale  declares, 
"that  many  of  those  things  that  we  now  take  for  common 
law,  were  undoubtedly  acts  of  parliament,  though  now 
not  to  be  found  of  record."  Hist.  Com.  Law,  66.  Though 
this  is  the  probable  origin  of  the  greatest  part  of  the 
common  law,  yet  much  of  it  certainly  has  been  intro- 


HOW  TO  STUDY  LAW.  167 

II.  The  second  branch  of  the  unwritten  laws 
of  England  are  particular  customs, orlaws,  which 
affect  only  the  inhabitants  of  particular  districts. 

These  particular  customs,  or  some  of  them, 
are  without  doubt  the  remains  of  that  multi- 
tude of  local  customs  before  mentioned,  out  of 
which  the  common  law,  as  it  now  stands,  was 
collected  at  first  by  King  Alfred,  and  after- 
wards by  King  Edgar  and  Edward  the  Con- 
fessor: each  district  mutually  sacrificing  some 
of  its  own  special  usages,  in  order  that  the 
whole  kingdom  might  enjoy  the  benefit  of  one 
uniform  and  universal  system  of  laws.  But  for 
reasons  that  have  been  now  long  forgotten, 
particular  counties,  cities,  towns,  manors,  and 
lordships,  were  very  early  indulged  with  the 
privilege  of  abiding  by  their  own  customs,  in 
contradistinction  to  the  rest  of  the  nation  at 
large:  which  privilege  is  confirmed  to  them  by 
several  acts  of  parliament.  (5'.) 

duced  by  usage,  even  of  modern  date,  which  general 
convenience  has  adopted.  Of  this  nature  is  the  law  of 
the  road,  viz:  that  horses  and  carriages  should  pass  each 
other  on  the  whip  hand.  This  law  has  not  been  enacted 
by  statute,  and  is  so  modern,  that  perhaps  this  is  the 
first  time  that  it  has  been  noticed  in  a  book  of  law.  But 
general  convenience  discovered  the  necessity  of  it,  and 
our  judges  have  so  far  confirmed  it,  as  to  declare  fre- 
quently at  nisi  prius,  that  he  who  disregards  this  salutary 
rule  is  answerable  in  damages  for  all  the  consequences.] 
— Cooley's  Blackstone,  page  yj,  n. 

(^)  Mag.  Cart.  9  Hen.  HI.  c.  9.  — i.  Edw.  IH.  St.  2. 
c.  9.  — 14  Edw.  HI.  St.  I.  c.  I.  — and  2  Hen.  IV,  c.  i. 


1 68  HOW  TO  STUDY  LAW. 

Such  is  the  custom  of  gavelkind  in  Kent, 
and  some  other  parts  of  the  kingdom  (though 
perhaps  it  was  also  general  till  the  Norman 
conquest),  which  ordains,  among  other 
things,  *that  not  the  eldest  son  only  of 
the  father  shall  succeed  to  his  inheritance,  but 
all  the  sons  alike:  and  that,  though  the  ances- 
tor be  attainted  and  hanged,  yet  the  heir  shall 
succeed  to  his  estate,  without  any  escheat  to 
the  lord.  Such  is  the  custom  that  prevails  in 
divers  ancient  boroughs,  and  therefore  called 
borough- English,  that  the  youngest  son  shall 
inherit  the  estate,  in  preference  to  all  his 
elder  brothers.  Such  is  the  custom  in  other 
boroughs  that  a  widow  shall  be  entitled,  for 
her  dower,  to  all  her  husband's  lands;  whereas, 
at  the  common  law,  she  shall  be  endowed  of 
one  third  part  only.  Such  also  are  the  special 
and  particular  customs  of  manors,  of  which 
every  one  has  more  or  less,  and  which  bind  all 
the  copyhold  and  customary  tenants  that  hold 
of  the  said  manors.  Such  likewise  is  the  cus- 
tom of  holding  divers  inferior  courts,  with 
power  of  trying  causes,  in  cities  and  trading 
towns,  the  right  of  holding  which,  when  no 
royal  grant  can  be  shewn,  depends  entirely 
upon  immemorial  and  established  usage. 
Such,  lastly,  are  many  particular  customs 
withm  the  city  of  London,  with  regard  to 
trade,  apprentices,  widows,  orphans,  and  a 
variety  other  matters.     All  these  are  contrary 


HOW  TO  STUDY  LAW.  169 

to  the  general  law  of  the  land,  and  are  good 
only  by  special  usage;  though  the  customs  of 
London  are  also  confirmed  by  act  of  parlia- 
ment, (a) 

To  this  head  may  most  properly  be  referred 
a  particular  system  of  customs  used  only 
among  one  set  of  the  king's  subjects,  called 
the  customs  of  merchants,  or  /ex  mercatoria: 
which,  however  different  from  the  general 
rules  of  the  common  law,  is  yet  ingrafted  into 
it,  and  made  a  part  of  it ;  {b)  being  allowed, 
for  the  benefit  of  trade,  to  be  of  the  utmost 
validity  in  all  commercial  transactions :  for  it 
is  a  maxim  of  law,  that  "'adlibet  in  sua  arte 
credefidinn  est." 

The  rules  relating  to  particular  customs 
regard  either  the  proof  oi  their  existence ;  their 
legality  when  proved;  or  their  usual  method 
of  allowance.  And  first  we  will  consider  the 
rules  oi  proof . 

*As  to  gavelkind,  and  borough- English,  the 
law  takes  particular  notice  of  them,  {c)  ^^  , 
and  there  is  no  occasion  to  prove  that 
such  customs  actually  exist,  but  only  that  the 
lands  in  question  are  subject  thereto.  All 
other  private  customs  must  be  particularly 
pleaded,  {d)  and  as  well  the  existence  of  such 
customs  must  be  shewn,  as  that  the  thing  in 
dispute  is  within  the   custom   alleged.      The 

(a)  8  Rep.  126.  Cro.  Car.  347.        (,b)  Winch.  24. 
\c)  Co.  Litt.  175.  {d)  Litt.  §265. 


i-O  HOW  TO  STUDY  LAW. 

trial  in  botli  cases  (both  to  shew  the  existence 
of  the  custom,  as,  *'that  in  the  manor  of  Dale 
lands  shall  descend  only  to  the  heirs  male,  and 
never  to  the  heirs  female;"  and  also  to  shew 
"that  the  lands  in  question  are  within  that 
manor")  is  by  a  jury  of  twelve  men,  and  not  by 
the  judges;  except  the  same  particular  custom 
has  been  before  tried,  determined,  and  re- 
corded in  the  same  court.  (<•) 

The  customs  of  London  differ  from  all  others 
in  point  of  trial:  for,  if  the  existence  of  the 
custom  be  brought  in  question,  it  shall  not  be 
tried  by  a  jury,  but  by  certificate  from  the  lord 
mayor  and  aldermen  by  the  mouth  of  their 
recorder ;(/)  unless  it  be  such  a  custom  as  the 
corporation  is  itself  interested  in,  as  a  right  of 
taking  toll,  &c.,  for  then  the  law  permits  them 
not  to  certify  on  their  own  behalf,  {g) 

When  a  custom  is  actually  proved  to  exist, 
the  next  inquiry  is  into  the  legality  of  it;  for, 
if  it  is  not  a  good  custom,  it  ought  to  be  no 
longer  used;  Malus  usus  abolendus  est,  is  an 
established  maxim  of  the  law.  (//)  To  make  a 
particular  custom  good,  the  following  are 
necessary  requisites. 

I.  That  it  have  been  used  so  long,  that  the 
memory  of  man  runneth  not  to  the  contrary. 
So  that,  if  any  one  can  shew  the  beginning  of 
it,  it  is  no  good  custom.     For  which  reason  no 


(<?)  Dr.  and  St.  i.  lo.  (/)  Cro.  Car.  516. 

(^)  Hob.  85.  {li)  Litt.  §212.  4  Inst.  274. 


HOW  TO  STUDY  LAW.  171 

custom  can  prevail  against  an  express  .  ^  -. 
act  of  *parliament,  since  the  statute  I-  //J 
itself  is  a  proof  of  a  time  when  such  a  custom 
did  not  exist,  (i) 

2.  It  must  have  been  co7itinued.  Any  inter- 
ruption would  cause  a  temporary  ceasing:  the 
revival  gives  it  a  new  beginning,  which  will  be 
within  time  of  memory,  and  thereupon  the 
custom  will  be  void.  But  this  must  be  under- 
stood with  regard  to  an  interruption  of  the 
right;  for  an  interruption  of  the  possession 
only,  for  ten  or  twenty  years,  will  not  destroy 
the  custom.  (7)  As  if  the  inhabitants  of  a 
parish  have  a  customary  right  of  watering 
their  cattle  at  a  certain  pool,  the  custom  is  not 
destroyed,  though  they  do  not  use  it  for  ten 
years;  it  only  becomes  more  difficult  to  prove: 
but  if  the  riglit  be  any  how  discontinued  for  a 
day,  the  custom  is  quite  at  an  end, 

3.  It  must  have  been  peaceable,  and  acqui- 
esced in;  not  subject  to  contention  and  dis- 
pute. (^)  For  as  customs  owe  their  original  to 
common  consent,  their  being  immemorially 
disputed,  either  at  law  or  otherwise,  is  a  proof 
that  such  consent  was  wanting. 

4.  Customs  must  be  reasonable; {I)  or  rather, 
taken  negatively,  they  must  not  be  unreason- 
able. Which  is  not  always,  as  Sir  Edward 
Coke  says,  (w)   to  be  understood  of  every  un- 

(/)  Co.  Litt.  114.  (7  )  Co.  Litt.  114. 

(>t)  Ibid.  (/)  Litt.  §  212.  (;«)  i  Inst.  62. 


172  HOW   TO   STUDY   LAW. 

learned  man's  reason,  but  of  artificial  and  legal 
reason,  warrantea  by  authority  of  law.  Upon 
which  account  custom  may  be  good,  though  the 
particular  reason  of  it  cannot  be  assigned ;  for 
it  sufficeth,  if  no  good  legal  reason  can  be 
assigned  against  it.  Thus  a  custom  in  a  parish, 
that  no  man  shall  put  his  beasts  into  the  com- 
mon till  the  third  of  October,  would  be  good ; 
and  yet  it  would  be  hard  to  shew  the  reason 
why  that  day  in  particular  is  fixed  upon,  rather 
than  the  day  before  or  after.  But  a  custom, 
that  no  cattle  shall  be  put  in  till  the  lord  of 
the  manor  has  first  put  in  his,  is  unreason- 
able, and  therefore  bad :  for  peradventure  the 
lord  will  never  put  in  his,  and  then  the  tenants 
will  lose    all  their  profits.  (?/) 

*t:.  Customs  ought  to  be  ^^r/«w.     A 
[78] 
■-  '   ^      custom,  that  lands  shall  descend  to  the 

must  worthy  of  the  owner's  blood,  is  void;  for 
how  shall  this  worth  be  determined?  but  a  cus- 
tom to  descend  to  the  next  male  of  the  blood, 
exclusive  of  females,  is  certain,  and  therefore 
good.  (<?)  A  custom  to  pay  two-pence  an  acre  in 
lieu  of  tithes,  is  good;  but  to  pay  sometimes 
two-pence,  and  sometimes  three-pence,  as  the 
occupier  of  the  land  pleases,  is  bad  for  its 
uncertainty.  Yet  a  custom,  to  pay  a  year's 
improved  value  for  a  fine  on  a  copyhold  estate, 
is  good ;  though  the  value  is  a  thing  uncertain : 

(«)  Co.  Copyh.  §  33.  {0)  I  Roll.  Abr.  565. 


HOW  TO  STUDY  LAW.  173 

for  the  value  may  at  any  time  be  ascertained ; 
and  the  maxim  of  law  is,  id  ccrtum  est,  quud 
certum  reddi potest. 

6.  Customs,  though  established  by  consent, 
must  be  (when  established)  compulsory ;  and 
not  left  to  the  option  of  every  man,  whether  he 
will  use  them  or  no.  Therefore  a  custom, 
that  all  the  inhabitants  shall  be  rated  towards 
the  maintenance  of  a  bridge,  will  be  good ;  but 
a  custom  that  every  man  is  to  contribute 
thereto  at  his  own  pleasure,  is  idle  and  absurd, 
and  indeed  no  custom  at  all. 

7.  Lastly,  customs  must  be  consistent  with 
each  other:  one  custom  cannot  be  set  up  in 
opposition  to  another.  For  if  both  are  really 
customs,  then  both  are  of  equal  antiquity,  and 
both  established  by  mutual  consent:  which  to 
say  of  contradictory  customs  is  absurd.  There- 
fore, if  one  man  prescribes  that  by  custom  he 
has  a  right  to  have  windows  looking  into  an- 
other's garden;  the  other  cannot  claim  a  right 
by  custom  to  stop  up  or  obstruct  those  win- 
dows :  for  these  two  contradictory  customs  can- 
not both  be  good,  nor  both  stand  together. 
He  ought  rather  to  deny  the  existence  of  the 
former  custom  (/) 

Next,  as  to  the  allowance  of  special  customs. 
Customs,  in  derogation  of  the  common  law, 
must  be  construed  strictly.  Thus,  by  the  cus- 
tom of  gavelkind,   an  infant  of  fifteen  years 

(/)  9  Rep.  58. 


174  HOW  TO  STUDY  LAW. 

*may,  by  one  species  of  conveyance,  (called  a 
deed  of  feoffment,)  convey  away  his 
'-  -'  lands  in  fee  simple,  or  forever.  Yet 
this  custom  does  not  impower  him  to  use  any 
other  conveyance,  or  even  to  lease  them  for 
seven  years  •  for  the  custom  must  be  strictly 
pursued,  [q)  And,  moreover,  all  special  cus- 
toms must  submit  to  the  king's  prerogative. 
Therefore,  if  the  king  purchases  lands  of  the 
nature  of  gavelkind,  where  all  the  sons  inherit 
equally;  yet,  upon  the  king's  demise,  his  eldest 
son  shall  succeed  to  those  lands  alone,  (r)  And 
thus  much  for  the  second  part  of  the  leges  non 
scriptcu,  or  those  particular  customs  which 
affect  particular  persons  or  districts  only. 

III.  The  third  branch  of  them  are  those 
peculiar  laws,  which  by  custom  are  adopted 
and  used  only  in  certain  peculiar  courts  and 
jurisdictions.  And  by  these  I  understand  the 
civil  and  canon  laws,  {s) 

It  may  seem  a  little  improper  at  first  view  to 
rank  these  laws  under  the  head  of  leges  non 
scriptcB^  or  unwritten  laws,  seeing  they  are  set 
forth  by  authority  in  their  pandects,  their 
codes,  and  their  institutions;  their  councils, 
decrees,  and  decretals;  and  enforced  by  an 
immense  number  of  expositions,  decisions,  and 
treatises  of  the  learned  in  both  branches  of  the 
law.     But  I  do  this,  after  the  example  of  Sir 

{q)  9  Co.  Cop.  §33  (r)  Co.  Litt.  15. 

{$)  Hist.  C.  L.  c.  2.  (/)  Hist.  C.  L.  c.  2. 


HOW  TO  STUDY  LAW.  i75 

Matthew  Hale,    (/)   because  it  is  most  plain, 
that  it  is  not  on  account  of  their  being  written 
laws  that  either  the  canon  law,  or  the  civil  law, 
have    any   obligation    within    this    kingdom: 
neither  do  their  force  and  efficacy  depend  upon 
their  own  intrinsic  authority,  which  is  the  case 
of    our    written  laws,   or  acts  of   parliament. 
They    bind    not    the    subjects    of     England, 
because   their  materials  were    collected  from 
popes   or  emperors;     were    digested    by  Jus- 
tinian, or  declared  to  be  authentic  by  Gregory. 
These  considerations  give  them  no  authority 
here;  for  the  legislature  of  England  doth  not, 
nor  ever  did,  recognize  any  foreign  power  as 
superior  or  equal  to  it  in  this  kingdom,  or  as 
having  the  right  to  give  law  to  any,  the  mean- 
est, of  its  subjects.     But  all  the  *strength  that 
either  the  papal  or  imperial  laws  have      ^^     -. 
obtained   in   this  realm,   or  indeed  in 
any  other  kingdom  in  Europe,  is  only  because 
they  have  been  admitted  and  received  by  im- 
memorial usage  and  custom  in  some  particular 
cases,   and  some  particular  conrts;    and  then 
they  form  a  branch  of  the  leges  non  scriptcs,  or 
customary  laws ;    or  else  because  they  are  in 
some   other   cases   introduced    by   consent   of 
parliament,  and  they  owe  their  validity  to  the 
leges  scriptcs,  or  statute  law.     This  is  expressly 
declared   in    those   remarkable   words   of    the 
statute  25  Hen.   VHI,   c.   21,  addressed  to  the 
king's    royal    majesty:     "This    your    grace's 


176  HOW  TO  STUDY  LAW. 

realm,  recognizing  no  superior  under  God  but 
only  your  gi'ace,  hath  been  and  is  free  from 
subjection  to  any  man's  laws,  but  only  to  such 
as  have  been  devised,  made,  and  ordained 
within  this  realm,  for  the  vi^ealth  of  the  same; 
or  to  such  other  as,  by  sufferance  of  your  grace 
and  your  progenitors,  the  people  of  this  your 
realm  have  taken  at  their  free  liberty,  by  their 
own  consent,  to  be  used  among  them;  and 
have  bound  themselves  by  long  use  and  custom 
to  the  observance  of  the  same;  not  as  to  the 
observance  of  the  laws  of  any  foreign  prince, 
potentate,  or  prelate;  but  as  to  the  customed 
and  ancient  laws  of  this  realm,  originally 
established  as  laws  of  the  same,  by  the  said 
sufferance,  consents,  and  custom;  and  none 
otherwise." 

By  the  civil  law,  absolutely  taken,  is  gener- 
ally understood  the  civil  or  municipal  law  of 
the  Roman  empire,  as  comprised  in  the  insti- 
tutes, the  code,  and  the  digest  of  the  emperor 
Justinian,  and  the  novel  constitutions  of  him- 
self and  some  of  his  successors.  Of  which, 
as  there  will  frequently  be  occasion  to  cite 
them,  by  way  of  illustrating  our  own  laws,  it 
may  not  be  amiss  to  give  a  short  and  general 
account. 

The  Roman  law  (founded  first  upon  the 
regal  constitutions  of  their  ancient  kings,  next 
upon  the  twelve  tables  of  the  decemviri,  then 
upon  the  laws  or  statutes  enacted  by  the  senate 


HOW  TO  STUDY  LAW.  i77 

or  people,  the  edicts  of  the  praetor,  and  ^^  ^ 
the  responsa  prudentum^  or  opinions  of 
learned  lawyers,  *and  lastly  upon  the  imperial 
decrees,  or  constitutions  of  successive  em- 
perors,) had  grown  to  so  great  a  bulk,  or,  as 
Livy  expresses  it,  (?/)  ^'tam  iimnensiis  aliarum 
super  alias  ascervatarmn  legum  cumulus,''  that 
they  were  computed  to  be  many  camels'  load 
by  an  author  who  preceded  Justinian.  (7^)  This 
was  in  part  remedied  by  the  collections  of 
three  private  lawyers,  Gregorius,  Hermogenes, 
and  Papirius ;  and  then  by  the  emperor  Theo- 
dosius  the  younger,  by  whose  orders  a  code 
was  compiled  A.  D.  438,  being  a  methodical 
collection  of  all  the  imperial  constitutions  then 
in  force :  which  Theodosian  code  was  the  only 
book  of  civil  law  received  as  authentic  in  the 
western  part  of  Europe  till  many  centuries 
after;  and  to  this  it  is  probable  that  the 
Franks  and  Goths  might  frequently  pay  some 
regard,  in  framing  legal  constitutions  for  their 
newly  erected  kingdoms;  for  Justinian  com- 
manded only  in  the  eastern  remains  of  the 
empire ;  and  it  was  under  his  auspices  that  the 
present  body  of  civil  law  was  compiled  and 
finished  by  Tribonian  and  other  lawyers,  about 
the  year  533. 

This  consists  of,  i.  The  institutes,  which 
contain  the  elements  or  first  principles  of  the 
Roman  law  in  four  books.     2.  The  digest,  or 

(«)  /.  3.  c.  34.     {v)  Taylor's  Elements  of  Civil  Law,  17. 


178  HOW  TO  STUDY  LAW. 

pandects,  in  fifty  books;  containing  the  opin- 
ions and  writings  of  eminent  lawyers,  digested 
in  a  systematical  method.  3.  A  new  code,  or 
collection  of  imperial  constitutions,  in  twelve 
books;  the  lapse  of  a  whole  century  having 
rendered  the  former  code  of  Theodosius  imper- 
fect. 4.  The  novels,  or  new  constitutions, 
posterior  in  time  to  the  other  books,  and 
amounting  to  a  supplement  to  the  code;  con- 
taining new  decrees  of  successive  emperors,  as 
new  questions  happened  to  arise.  These  form 
the  body  of  Roman  law,  or  corpus  juris  civilis, 
as  published  about  the  time  of  Justinian; 
which,  however,  fell  soon  into  neglect  and 
oblivion,  till  about  the  year  11 30,  when  a  copy 
of  the  digests  was  found  at  Amalfi,  in  Italy; 
which  accident,  concurring  witli  the  policy  of 
the  Roman  ecclesiastics,  (zf)  suddenly  gave 
new  vogue  and  authority  to  the  civil  law, 
introduced  it  into  several  nations,  and 
•-  -■  ^occasioned  that  mighty  inundation  of 
voluminous  comments,  with  which  this  system 
of  law,  more  than  any  other,  is  now  loaded. 

The  canon  law  is  a  body  of  Roman  ecclesias- 
tical law,  relative  to  such  matters  as  that 
church  either  has,  or  pretends  to  have,  the 
proper  jurisdiction  over.  This  is  compiled 
from  the  opinions  of  the  ancient  Latin  fathers, 
the  decrees  of  general  councils,  and  decretal 
epistles  and  bulls  of  the  holy  see;    all  which 

(w)  See  §1,  page  i8. 


HOW  TO  STUDY  LAW.  179 

lay  in  the  same  disorder  and  confusion  as  the 
Roman  civil  law,  till,  about  the  year  1151,  one 
Gratian,  an  Italian  monk,  animated  by  the  dis- 
covery of    Justinian's    pandects,   reduced  the 
ecclesiastical     constitutions     also     into    some 
method,    in    three    books,    which   he    entitled 
Concordia       Discordantium       Canonum^       but 
which   are  generally  known  by  the  name  of 
Decretum  Gratiani.     These  reached  as  low  as 
the  time  of  Pope  Alexander  III.     The  subse- 
quent  papal    decrees,    to    the    pontificate    of 
Gregory  IX,  were  published  in  much  the  same 
method,    imder   the    auspices    of    that    pope, 
about   the  year   1230,   in   five  books,   entitled 
Decretalia  Gregorii  Noni.     A  sixth  book  was 
added  by  Boniface  VIII,  about  the  year  1298, 
which    is    called    Sexttis    Decretaliinn.       The 
Clementine  constitutions,  or  decrees  of  Clem, 
ent  V,  were  in  like  manner  authenticated  in 
131 7,  by  his  successor  John  XXII,   who  also 
published    twenty   constitutions   of    his   own, 
called  the  Extravagantes  Joannis^  all  which  in 
some  measure    answer  to   the   novels   of   the 
civil  law.      To    these    have  been  since  added 
some   decrees   of   later  popes,   in  five    books, 
called  Extravagantcs  CoinimtJtcs:  and  all  these 
together,  Gratian 's  decree,  Gregory's  decretals, 
the  sixth  decretals,   the  Clementine  constitu- 
tions, and  the  extravagants  of  John  and  his 
successors,  form  the  corpus  juris  canonici^  or 
body  of  the  Roman  canon  law. 


l8o  HOW  TO    STUDY  LAW, 

Besides  these  pontifical  collections,  which, 
during  the  times  of  popery,  were  received  as 
authentic  in  this  island,  as  well  as  in  other 
parts  of  Christendom,  there  is  also  a  kind  of 
national  canon  law,  composed  of  legatine  and 
provincial  constitutions,  and  adapted  only  to 
the  exigencies  of  this  church*  and  king- 
'-  -'  dom.  The  legatine  constitutions  were 
ecclesiastical  laws,  enacted  in  national  synods, 
held  under  the  cardinals  Otho  and  Othobon, 
legates  from  Pope  Gregory  IX  and  Pope 
Clement  IV,  in  the  reign  of  King  Henry  III, 
about  the  years  1220  and  1268.  The  provincial 
constitutions  are  principally  the  decrees  of 
provincial  synods,  held  under  divers  arch- 
bishops of  Canterbury,  from  Stephen  Langton, 
in  the  reign  of  Henry  III,  to  Henry  Chichelle, 
in  the  reign  of  Henry  V;  and  adopted  also  by 
the  province  of  York  (,r)  in  the  reign  of  Henry 
VI.  At  the  dawn  of  the  reformation,  in  the 
reign  of  King  Henry  VIII,  it  was  enacted  in 
parliament  {y)  that  a  review  should  be  had  of 
the  canon  law ;  and,  till  such  review  should  be 
made,  all  canons,  constitutions,  ordinances, 
and  synodals  provincial,  being  then  already 
made,  and  not  repugnant  to  the  law  of  the 
land  or  the  king's  prerogative,  should  still  be 
used  and  executed.     And,  as  no  such  review 

{x)  Burn's  Eccl.  Law,  pref.  viii, 

(/)  Statute  25  Hen.  VIIL  c.  19,  revived  and  confirmed 
by  I  Eliz.  c.  i. 


HOW  TO  STUDY  LAW.  i8i 

has  yet  been  perfected,  upon  this  statute  now  de- 
pends the  authority  of  the  canon  law  in  England. 

As  for  the  canons  enacted  by  the  clergy  under 
James  I  in  the  year  1603,  and  never  confirmed 
in  parliament,  it  has  been  solemnly  adjudged 
upon  the  principles  of  law  and  the  constitution, 
that  where  they  are  not  merely  declaratory  of 
the  ancient  canon  law,  but  are  introductory  of 
new  regulations,  they  do  not  bind  the  laity,  {2) 
whatever  regard  the  clergy  may  think  proper 
to  pay  them. 

There  are  four  species  of  courts  in  which 
the  civil  and  canon  laws  are  permitted,  under 
different  restrictions,  to  be  used:-  i.  The 
courts  of  the  archbishops  and  bishops,  and 
their  derivative  officers,  usually  called  in  our 
law  courts  Christian  curies  Christianitatis,  or 
the  ecclesiastical  courts.  2.  The  military 
courts.  3.  The  courts  of  admiralty.  4.  The 
courts  of  the  two  universities.  In  all,  their 
reception  in  general,  and  the  different  degrees 
of  that  reception,  are  grounded  entirely  upon 
custom,  corroborated  in  the  latter  instance  by 
act  of  *parliament,  ratifying  those  charters 
which  confirm  the  customary  law  of  ^ 
the  universities.  The  more  minute  '-  -' 
consideration  of  these  will  fall  properly  under 
that  part  of  these  commentaries  which  treats 
of  the  jurisdiction  of  courts.  It  will  suffice  at 
present  to  remark  a  few  particulars  relative  to 

(ji)  Stra.  1057. 


1 82  HOW  TO  STUDY  LAW. 

them  all,  which  may  serve  to  inculcate  more 
strongly  the  doctrine  laid  down  concerning 
them,  (a) 

1.  And,  first,  the  courts  of  common  law 
have  the  superintendency  over  these  courts ;  to 
keep  them  within  their  jurisdictions,  to  deter- 
mine wherein  they  exceed  them,  to  restrain 
and  prohibit  such  excess,  and,  in  case  of  con- 
tumacy, to  punish  the  officer  who  executes,  and 
in  some  cases  the  judge  who  enforces,  the 
sentence  so  declared  to  be  illegal. 

2.  The  common  law  has  reserved  to  itself 
the  exposition  of  all  such  acts  of  parliament  as 
concern  either  the  extent  of  these  courts,  or 
the  matters  depending  before  them.  And 
therefore,  if  these  courts  either  refuse  to  allow 
these  acts  of  parliament,  or  will  expound  them 
in  any  other  sense  than  what  the  common  law 
puts  upon  them,  the  king's  courts  at  Westmin- 
ster will  grant  prohibitions  to  restrain  and  con- 
trol them. 

3.  An  appeal  lies  from  all  these  courts  to  the 
king,  in  the  last  resort;  which  proves  that  the 
jurisdiction  exercised  in  them  is  derived  from 
the  crown  of  England,  and  not  from  any  foreign 
potentate,  or  intrinsic  authority  of  their  own. 
And,  from  these  three  strong  marks  and 
ensigns  of  superiority,  it  appears  beyond  a 
doubt  that  the  civil  and  canon  laws,  though 
admitted   in  some   cases   by  custom   in  some 

{a)  Hale,  Hist.  c.  2. 


HOW  TO  STUDY   LAW.  183 

courts,  are  cnl)'  subordinate,  and  leges  sub 
graviori  Itge;  and  that,  thus  admitted,  re- 
strained, altered,  new-modeled,  and  amended, 
they  are  by  no  means  with  us  a  distinct  inde- 
pendent species  of  laws,  but  are  inferior 
branches  of  the  customary  or  unwritten  laws 
of  England,  properly  called  the  king's  ecclesi- 
astical, the  king's  military,  the  king's  maritime, 
or  the  king's  academical  laws. 

*Let  us  next  proceed  to  the  leges  -^  .. 
scriptcB,  the  written  laws  of  the  king-  '-  -' 
dom,  which  are  statutes,  acts  or  edicts,  made 
by  the  king's  majesty,  by  and  with  the  advice 
and  consent  of  the  lords  spiritual  and  temporal, 
and  commons  in  parliament  assembled,  (i^) 
The  oldest  of  these  now  extant,  and  printed  in 
our  statute  books,  is  the  famous  magna  charta, 
as  confirmed  in  parliament  9  Hen.  Ill,  though 
doubtless  there  were  many  acts  before  that 
time,  the  records  of  which  are  now  lost,  and 
the  determinations  of  them  perhaps  at  present 
currently  received  for  the  maxims  of  the  old 
common  law. 

The  manner  of  making  these  statutes  will  be 
better  considered  hereafter,  when  we  examine 
the  constitution  of  parliaments.  At  present 
we  will  only  take  notice  of  the  different  kinds 
of  statutes,  and  of  some  general  rules  with 
regard  to  their  construction,  {c) 

{b)  8  Rep.  20. 

{c)  The  method  of  citing  these  acts  of  parliament  is 


184  HOW  TO  STUDY  LAW. 

First,  as  to  their  several  kinds.  Statutes  are 
either  ^^wrnz/ or  special,  public  or  private.  A 
j.^  ,  general  or  public  act  is  an  *universal 
^  ^  rule,  that  regards  the  whole  com- 
munity; and  of  this  the  courts  of  law  are 
bound  to  take  notice  judicially  and  ex  officio; 

various.  Many  of  our  ancient  statutes  are  called  after 
the  name  of  the  place  where  the  parliament  was  held 
that  made  them ;  as  the  statutes  of  Merton  and  Marle- 
berge,  of  Westminster,  Gloucester,  and  Winchester. 
Others  are  denominated  entirely  from  their  subject,  as 
the  statutes  of  Wales  and  Ireland,  the  articidi  cleri,  and 
the  prcerogaitva  regis.  Some  are  distinguished  by  their 
initial  words,  a  method  of  citing  very  ancient,  being  used 
by  the  Jews  in  denominating  the  books  of  the  Penta- 
teuch: by  the  Christian  church  in  distinguishing  their 
hymns  and  divine  offices:  by  the  Romanists  in  describ- 
ing their  papal  bulls ;  and,  in  short,  by  the*  whole  body 
of  ancient  civilians  and  canonists,  among  whom  this 
method  of  citation  generally  prevailed,  not  only  with 
regard  to  chapters,  but  inferior  sections  also ;  in  imitation 
of  all  which  we  still  call  some  of  our  old  statutes  by  their 
initial  words,  as  the  statute  of  quia  emptores,  and  that 
of  circumspecte  agatis.  But  the  most  usual  method  of 
citing  them,  especially  since  the  time  of  Edward  the 
Second,  is  by  naming  the  year  of  the  king's  reign  in 
which  the  statute  was  made,  ^together  with  the  chapter, 
or  particular  act,  according  to  its  numeral  order,  as  9 
Geo.  II.  c.  4,  for  all  the  acts  of  one  session  of  Parliament 
taken  together  made  properly  but  one  statute ;  and  there- 
fore when  two  sessions  have  been  held  in  one  year,  we 
usually  mention  stat.  i  or  2.  Thus  the  bill  of  rights  is 
cited  as  i  W.  and  M.  St.  2.  c.  2,  signifjnng  that  it  is  the 
second  chapter  or  act  of  the  second  statute,  or  the  laws 
made  in  the  second  session  of  parliament,  in  the  first  year 
of  King  William  and  Queen  Mary. 


HOW  TO  STUDY  LAW.  185 

without  the  statute  being  particularly  pleaded, 
or  formally  set  forth  by  the  party  who  claims 
an  advantage  under  it.  Special  or  private  acts 
are  rather  exceptions  than  rules,  being  those 
which  only  operate  upon  particular  persons, 
and  private  concerns;  such  as  the  Romans 
entitled  scnatiis-decreta,  in  contradistinction  to 
the  senatus  considta,  which  regarded  the  whole 
community;  {d)  and  of  these  (which  are  not 
promulgated  with  the  same  notoriety  as  the 
former,)  the  judges  are  not  bound  to  take 
notice,  unless  they  be  formally  shewn  and 
pleaded.  Thus,  to  show  the  distinction,  the 
statute  13  Eliz.  c.  10,  to  prevent  spiritual  per- 
sons from  making  leases  for  longer  terms  than 
twenty-one  years,  or  three  lives,  is  a  public 
act;  it  being  a  rule  prescribed  to  the  whole 
body  of  spiritual  persons  in  the  nation;  but  an 
act  to  enable  the  bishop  of  Chester  to  make  a 
lease  to  A.  B.  for  sixty  years  is  an  exception  to 
this  rule ;  it  concerns  only  the  parties  and  the 
bishop's  successors ;  and  is  therefore  a  private 
act. 

Statutes  also  are  either  declaratory  of  the 
common  law,  or  remedial  of  some  defects 
therein.  Declaratory  where  the  old  custom  of 
the  kingdom  is  almost  fallen  into  disuse  or 
become  disputable ;  in  which  case  the  parlia- 
ment has  thought  proper,  in  perpetimm  rei 
tetimoninni,   and  for  avoiding  all  doubts  and 

{d)  Gravin,  Orig.  i.  §24. 


1 86  HOW  TO  STUDY  LAW. 

difficnlties,  to  declare  what  the  common  law  is 
and  ever  hath  been.  Thus  the  statute  of 
treasons,  25  Edw.  Ill,  cap.  2,  doth  not  make 
any  new  species  of  treasons,  but  only,  for  the 
benefit  of  the  subject,  declares  and  enumerates 
those  several  kinds  of  offence  which  before 
were  treason  at  the  common  law.  Remedial 
statutes  are  those  which  are  made  to  supply 
such  defects,  and  abridge  such  superfluities,  in 
the  common  law,  as  arise  either  from  the  gen- 
eral imperfection  of  all  human  laws,  from 
change  of  time  and  circumstances,  from  the 
mistakes  and  imadvised  determinations  of 
unlearned  (ur  even  learned)  Judges,  or  from 
any  other  cause  whatsoever.  And  this  being 
done,  either  by  enlarging  the  common  law, 
where  it  was  too  narrow  and  circumscribed,  or 
r*c„T  ^y  restraining  it  *\vhere  it  was  too  lax 
*-  '-'  and  luxuriant  hath  occasioned  another 
subordinate  division  of  remedial  acts  of  parlia- 
ment into  enlarging  and  restraining  statutes. 
To  instance  again  in  the  case  of  treason:  clip- 
ping the  current  coin  of  the  kingdom  was  an 
offence  nut  sufficiently  guarded  against  by  the 
common  law;  therefore  it  was  thought  expe- 
dient, by  statute  5  Eliz.  c.  11,  to  make  it  high 
treason,  which  it  was  not  at  the  common  law: 
so  that  this  was  an  enlarging  statJite.  At  com- 
mon law  also  spiritual  corporations  might 
lease  out  their  estates  for  any  term  of  years  till 
prevented  by  the  statute  13  Eliz.  before  men- 


HOW  TO  STUDY  LAW.  187 

tioned:     this     was    therefore,    a    restraining 

statute. 

Secondly,  the  rules  to  be  observed  with  re- 
gard to  the  construction  of  statutes  are  prin- 
cipally these  which  follow. 

I.  There  are  three  points  to  be  considered  in 
the  construction  of  all  remedial  statutes;  the 
old  law,  the  mischief,  and  the  remedy:  that  is, 
how  the  common  law  stood  at  the  making  of 
the  act;  what  the  mischief  was,  for  which  the 
common  law  did  not  provide;  and  what 
remedy  the  parliament  hath  provided  to  cure 
this  mischief.  And  it  is  the  business  of  the 
judges  so  to  construe  the  act  as  to  suppress  the 
mischief  and  advance  the  remedy,  (e)  Let  us 
instance  again  in  the  same  restraining  statute 
of  13  Eliz.  c.  10:  By  the  common  law,  ecclesi- 
astical corporations  might  let  as  long  leases  as 
they  thought  proper:  the  mischief  was,  that 
they  let  long  and  unreasonable  leases,  to  the 
impoverishment  of  their  successors ;  the  rem- 
edy applied  by  the  statute  was  by  making  void 
all  leases  by  ecclesiastical  bodies  for  longer 
terms  than  three  lives,  or  twenty-one  years. 
Now  in  the  construction  of  this  statute,  it  is 
held  that  leases,  though  for  a  longer  term,  if 
made  by  a  bishop,  are  not  void  during  the 
bishop's  continuance  in  his  see:  or,  if  made  by 
a  dean  and  chapter,  they  are  not  void  during 
the  continuance  of  the  dean ,    for  the  act  was 

{e)  3  Rep.  7  Co.  Litt  11.  42. 


1 88  HOW  TO  STUDY  LAW. 

made  for  the  benefit  and  protection  of  the  suc- 
cessor. (/)  The  mischief  is  therefore  suffi- 
r*R5n  ciently  suppressed  by  vacating  them 
'■  -'  after  the  determination  of  the  interest 
of  the  *grantors;  but  the  leases,  during  their 
continuance,  being  not  within  the  mischief, 
are  not  within  the  remedy. 

2.  A  statute,  which  treats  of  things  or  per- 
sons of  an  inferior  rank,  cannot  by  any  general 
words  be  extended  to  those  of  a  superior.  So 
a  statute,  treating  of  "deans,  prebendaries, 
parsons,  vicars,  and  others  having  spiritual 
promotion,"  is  held  not  to  extend  to  bishops, 
though  they  have  spiritual  promotion,  deans 
being  the  highest  persons  named,  and  bishops 
being  of  a  still  higher  order. {g) 

3,  Penal  statutes  must  be  construed  strictly. 
Thus  the  statute  i  Edw,  VI,  c.  12,  having 
enacted  that  those  who  are  convicted  of  steal- 
ing horses  should  not  have  the  benefit  of  clergy, 
the  judges  conceived  that  this  did  not  extend 
to  him  that  should  steal  but  one  horse,  and 
therefore  procured  a  new  act  for  that  purpose 
in  the  following  year,  {h)  And,  to  come  nearer 
our  own  times,  by  the  statute  14  Geo.  II,  c.  6, 
stealing  sheep,  or  other  cattle,  was  made 
felony,  without  benefit  of  clergy.  But  these 
general  words,  "or  other  cattle,"  being  looked 

(/)  Co.  Litt.  45.     3  Rep.  60.    10  Rep.  58. 

{g)  2  Rep.  46. 

(h)  2  and  3  Edw.  VI.  c.  33.    Bac.  Eiem  c.  12. 


HOW  TO  STUDY  LAW.  189 

Upon  as  much  too  loose  to  create  a  capital 
offence,  the  act  was  held  to  extend  to  nothing 
but  mere  sheep.  And  therefore,  in  the  next 
sessions,  it  was  found  necessary  to  makf^  an- 
other statute,  15  Geo,  II,  c.  34,  extending  the 
former  to  bulls,  cows,  oxen,  steers,  bullocks, 
heifers,  calves  and  lambs,  by  name. 

4.  Statutes  against  frauds  are  to  be  liberally 
and  beneficially  expounded.  This  may  seem  a 
contradiction  to  the  last  rule;  most  statutes 
against  frauds  being  in  their  consequences 
penal.  But  this  difference  is  here  to  be  taken: 
where  the  statute  acts  upon  the  offender,  and 
inflicts  a  penalty,  as  the  pillory  or  a  fine,  it  is 
then  to  be  taken  strictly ;  but  when  the  statute 
acts  upon  the  offence,  by  setting  aside  the 
fraudulent  transaction,  here  it  is  to  be  construed 
liberally.  Upon  this  footing  the  statute  of  13 
Eliz.  c.  5,  which  avoids  all  gifts  of  goods,  &c., 
made  to  defraud  creditors  and  others^  was 
*held  to  extend  by  the  general  words  to  -^  - 
a  gift  made  to  defraud  the  queen  of  a  L  yj 
forfeiture.  (/) 

One  part  of  a  statute  must  be  so  construed 
by  another,  that  the  whole  may  (if  possible) 
stand:  ut  res  inagis  valeat,  qiiam pereat.  As  if 
land  be  vested  in  the  king  and  his  heirs  by  act 
of  parliament,  saving  the  right  of  A.,  and  A. 
has  at  that  time  a  lease  of  it  for  three  years : 
here  A.    shall  hold  it   for  his  term   of   three 

(/)  3  Rep.  82. 


tpo  HOW  TO  STUDY  LAW. 

years,  and  afterwards  it  shall  go  to  the  king. 
For  this  interpretation  furnishes  matter  for 
every  clause  of  the  statute  to  work  and  oper- 
ate upon.     But, 

6.  A  saving,  totally  repugnant  to  the  body 
of  the  act,  is  void.  If,  therefore,  an  act  of 
parliament  vests  land  in  the  king  and  his  heirs, 
saving  the  right  of  all  persons  whatsoever;  or 
vests  the  land  of  A.  in  the  king,  saving  the 
right  of  A. ;  in  either  of  these  cases  the  saving 
is  totally  repugnant  to  the  body  of  the  statute, 
and  (if  good)  would  render  the  statute  of  no 
effect  or  operation ;  and  therefore  the  saving  is 
void,  and  the  land  vests  absolutely  in  the 
king.  ( k ) 

7.  Where  the  common  law  and  the  statute 
differ,  the  common  law  gives  place  to  the 
statute;  and  an  old  statute  gives  place  to  a 
new  one.  And  this  upon  a  general  principle  of 
universal  law,  that  ''leges  poster  lores,  prior  es 
contr arias  abrogant;''  consonant  to  which  it 
was  laid  down  by  a  law  of  the  twelve  tables  at 
Rome,  that  ''quod populus  postremiim  jiissit,  id 
jus  ratuni  esto.'"  But  this  is  to  be  understood, 
only  when  the  latter  statute  is  couched  in 
negative  terms,  or  where  its  matter  is  so 
clearly  repugnant,  that  it  necessarily  implies  a 
negative.  As  if  a  former  act  says,  that  a  juror 
upon  such  a  trial  shall  have  twenty  pounds  a 
year;    and  a  new  statute  afterwards    enacts, 

{k)  I  Rep.  47- 


HOW  TO  STUDY  LAW.  191 

that  he  shall  have  twenty  marks:  here  the 
latter  statute,  though  it  does  not  express,  yet 
necessarily  implies  a  negative,  and  virtually 
repeals  the  former.  For  if  twenty  marks  be 
made  qualification  sufficient,  the  former  statute 
which  requires  twenty  pounds  is  at  an  ^^  .. 
end.  (/)  But,  if  both  acts  be  merely  L  9  J 
aflSrmative,  *and  the  substance  such  that  both 
may  stand  together,  here  the  latter  does  not 
repeal  the  former,  but  they  shall  both  have  a 
concurrent  efficacy.  If  by  a  former  law  an 
offence  be  indictable  at  the  quarter-sessions, 
and  a  latter  law  makes  the  same  offence 
indictable  at  the  assizes;  here  the  jurisdiction 
of  the  sessions  is  not  taken  away,  but  both 
have  a  concurrent  jurisdiction,  and  the  offender 
maybe  prosecuted  at  either:  unless  the  new 
statute  subjoins  express  negative  words,  as, 
that  the  offence  shall  be  indictable  at  the 
assizes,  and  7iot  elsewhere,  (m) 

8.  If  a  statute,  that  repeals  another,  is  itself 
repealed  afterwards,  the  first  statute  is  hereby 
revived,  without  any  formal  words  for  that 
purpose.  So  when  the  statutes  of  26  and  35 
Henry  VIII,  declaring  the  king  to  be  the 
supreme  head  of  the  church,  were  repealed  by 
a  statute  i  and  2  Philip  and  Mary,  and  this 
latter  statute  was  afterwards  repealed  by  an  act 
of  I  Eliz.  there  needed  not  any  express  words 
of  revival   in  Queen   Elizabeth's  statute,  but 

(/)  Jenk.  Cent.  2.  73-  (»«)  n  Rep.  63. 


192  HOW  TO  STUDY  LAW. 

these  acts  of  King  Henry  were  impliedly  and 
virtually  revived.  («) 

9.  Acts  of  parliament  derogatory  from  the 
power  of  subsequent  parliaments  bind  not.  So 
the  statute  11  Hen.  VH,  c.  i,  which  directs 
that  no  person  for  assisting  a  king  de  facto 
shall  be  attainted  of  treason  by  act  of  parlia- 
ment or  otherwise,  is  held  to  be  good  only  as 
to  common  prosecution  for  high  treason;  but 
will  not  restrain  or  clog  any  parliamentary 
attainder.  ((?)  Because  the  legislature,  being 
in  truth  the  sovereign  power,  is  always  of 
equal,  always  of  absolute  authority ;  it  acknowl- 
edges no  supeiior  upon  earth  which  the  prior 
legislature  must  have  been,  if  its  ordinances 
could  bind  a  subsequent  parliament.  And 
upon  the  same  principle  Cicero,  in  his  letters 
to  Atticus,  treats  with  a  proper  contempt  these 
restraining  clauses,  which  endeavor  to  tie  up 
the  hands  of  succeeding  legislatures.     "When 

^  you  repeal  the  *law  itself,  (says  he,)  you 
'-  -"  at  the  same  time  repeal  the  prohibitory 
clause,  which  guards  against  such  repeal."  (/) 

10.  Lastly,  acts  of  parliament  that  are  im- 
possible to  be  performed  are  of  no  validity; 
and  if  there  arise  out  of  them  collaterally  any 
absurd  consequences,  manifestly  contradictory 
to  common  reason,   they  are.  with  regard  to 

(«)  4  Inst.  325.  {0)  4  Inst.  43. 

(/>)  Cum  lex  abrot^atur,  illud  ipsutn  abrogatur,  quo 
non  earn  abrogari  oporteat.  I.  3.  cp.  23. 


HOW  TO  STUDY  LAW.  I93 

those  collateral  consequences  void.  I  lay 
down  the  rule  with  these  restrictions ;  though 
I  know  it  is  generally  laid  down  more  largely, 
the  acts  of  parliament  contrary  to  reason  are 
void.  But  if  the  parliament  will  positively 
enact  a  thing  to  be  done  which  is  unreason- 
able I  know  of  no  power  in  the  ordinary  forms 
of  the  constitution  that  is  vested  with  author- 
ity to  control  it ;  and  the  examples  usually  al- 
leged in  support  of  this  sense  of  the  rule  do 
none  of  them  prove,  that,  where  the  main 
object  of  a  statute  is  unreasonable,  the  judges 
are  at  liberty  to  reject  it ;  for  that  were  to  set 
the  judicial  power  above  that  of  the  legislature, 
which  would  be  subversive  of  all  government. 
But  where  some  collateral  matter  arises  out  of 
the  general  words,  and  happens  to  be  unrea- 
sonable, there  the  judges  are  in  decency  to 
conclude  that  this  consequence  was  not  fore- 
seen by  the  parliament,  and  therefore  they  are 
at  liberty  to  expound  the  statute  by  equity, 
and  only  quoad  hoc  disregard  it.  Thus  if  an 
act  of  parliament  gives  a  man  power  to  try  all 
causes,  that  arise  within  his  manor  of  Dale; 
yet,  if  a  cause  should  arise  in  which  he  himself 
is  party,  the  act  is  construed  not  to  extend  to 
that,  because  it  is  unreasonable  that  any  man 
should  determine  his  own  quarrel,  {q)  But,  if 
we  could  conceive  it  possible  for  the  parlia- 
ment to  enact,  that  he  should  try  as  well  his 

{q'y  8.  Rep,  ii8. 


194  HOW  TO  STUDY  LAW. 

own  causes  as  those  of  other  persons,  there  is 
no  court  that  has  power  to  defeat  the  intent  of 
the  legislature,  when  couched  in  such  evident 
and  exjyess  words,  as  leave  no  doubt  whether 
it  was  the  intent  of  the  legislature  or  no. 

These  are  the  several  grounds  of  the  laws  of 
-^  T  England;  over  and  above  which, 
^  -•  equity  is  also  freqently  called  in  to 
♦assist,  to  moderate  and  to  explain  them. 
What  equity  is,  and  how  impossible  in  its  very 
essence  to  be  reduced  to  stated  rules,  hath 
been  shewn  in  the  preceding  section.  I  shall 
therefore  only  add,  that  (besides  the  liberality 
of  sentiment  with  which  our  common  law 
judges  interpret  acts  of  parliament,  and  such 
rules  of  the  unwritten  law  as  are  not  of  a  posi- 
tive kind)  there  are  also  peculiar  courts  of 
equity  established  for  the  benefit  of  the  sub- 
ject: to  detect  latent  frauds  and  concealments, 
which  the  process  of  the  courts  of  law  is  not 
adapted  to  reach ;  to  enforce  the  execution  of 
such  matters  of  trust  and  confidence,  as  are 
binding  in  conscience,  though  not  cognizable 
in  a  court  of  law;  to  deliver  from  such  dangers 
as  are  owing  to  misfortune  or  oversight;  and 
to  give  a  more  specific  relief,  and  more  adapted 
to  the  circumstances  of  the  case,  than  can 
always  be  obtained  by  the  generality  of  the 
rules  of  the  positive  or  common  law.  This  is 
the  business  of  our  courts  of  equity,  which  how- 
ever are  only  conversant  in  matters  of  prop^ 


HOW  TO  STUDY  LAW.  195 

erty.  For  the  freedom  of  our  constitution  will 
not  permit,  that  in  criminal  cases  a  power 
should  be  lodged  in  any  judge,  to  construe  the 
law  otherwise  than  according  to  the. letter. 
This  caution,  while  it  admirably  protects  the 
public  liberty,  can  never  bear  hard  upon  indi- 
viduals. A  man  cannot  suffer  more  punish- 
ment than  the  law  assigns,  but  he  may  suffer 
less.  The  laws  cannot  be  strained  by  partiality 
to  inflict  a  penalty  beyond  what  the  letter  will 
warrant ;  but,  in  cases  where  the  letter  induces 
any  apparent  hardship,  the  crown  has  the 
power  to  pardon. 


BOOK  THE  FIRST 

OF  THE  RIGHTS   OF   PERSONS 
CHAPTER  I 

OF    THE    ABSOLUTE    RIGHTS    OF    INDIVIDUALS 

The  objects  of  the  laws  of  England  are  so 
very  numerous  and  extensive,  that  in  order  to 
consider  them  with  any  tolerable  ease  and 
perspicuity,  it  will  be  necessary  to  distribute 
them  methodically,  under  proper  and  distinct 
heads;  avoiding  as  much  as  possible  divisions 
too  large  and  comprehensive  on  the  one  hand, 
and  too  trifling  and  minute  on  the  other;  both 
of  which  are  equally  productive  of  confusion. 

*Now,  as  municipal  law  is  a  rule  of    r*       -, 

.  122 

civil    conduct,    commandmg    what    is  -" 

right,  and  prohibiting  what  is  wrong;  or  as 
Cicero,  (a)  and  after  him  our  Bracton,  {d) 
have  expressed  it,  sanctio  justa^  jubens  honesta 
et  prohibens  contraria^  it  follows  that  the  pri- 
mary and  principal  objects  of  the  law  are 
RIGHTS  and  WRONGS.  In  the  prosecution, 
therefore,  of  these  commentaries,  I  shall  fol- 
low   this  very  simple    and    obvious   division; 

Ca)  II  Philipp.  12.  ijj)  I.  I.  e.  3. 

«97 


198  HOW  TO   STUDY   LAW. 

and  shall,  in  the  first  place,  consider  the  rights 
that  are  commanded,  and  secondly  the  wrongs 
that  are  forbidden,  by  the  laws  of  England. 

Rights  are,  however,  liable  to  another  sub- 
division; being  either,  first,  those  which  con- 
cern and  are  annexed  to  the  persons  of  men, 
and  are  then  called  jura  personarum,  or  the 
rights  of  persons;  or  they  are,  secondly,  such 
as  a  man  may  acquire  over  external  objects, 
or  things  unconnected  with  his  person;  which 
are  styled  jura  rerum.,  or  the  rights  of  things. 
Wrongs  also  are  divisible  into,  first,  private 
wrongs,  which,  being  an  infringement  merely 
of  particular  rights,  concern  individuals  only, 
and  are  called  civil  injuries;  and  secondly, 
public  wrongs,  which,  being  a  breach  of  gen- 
eral and  public  rights,  affect  the  whole  com- 
munity, and  are  called  crimes  and  misde- 
meanors. 

The  objects  of  the  laws  of  England  falling 
into  this  fourfold  division,  the  present  com- 
mentaries will  therefore  consist  of  the  four 
following  parts,  i.  The  rights  of  persons,  with 
the  means  whereby  such  rights  may  be  either 
acquired  or  lost.  2.  The  rights  of  things,  yNiih. 
the  means  also  of  acquiring  and  losing  them. 
3.  Private  wrongs,  or  civil  injuries;  with  the 
means  of  redressing  them  by  law.  4.  Public 
wrongs,  or  crimes  and  misdemeanors;  with  the 
means  of  prevention  and  punishment. 

We  are  now  first  to  consider  the  rights  of 


HOW  TO   STUDY  LAW.  199 

persons^  with  the  means  of  acquiring  and  los- 
ing them. 

*Now  the  rights  of  persons  that  are  ^^  ^ 
commanded  to  be  observed  by  the  ^  -" 
municipal  laws  are  of  two  sorts:  first,  such  as 
are  due  fro)n  every  citizen,  which  are  usually 
called  civil  duties;  and,  secondly,  such  as 
belong  to  him,  which  is  the  more  popular 
acceptance  of  rights  or  jura.  Both  may  in- 
deed be  comprised  in  this  latter  division;  for, 
as  all  social  duties  are  of  a  relativ^e  nature,  at 
the  same  time  that  they  are  due  from  one 
man,  or  set  of  men,  they  must  also  be  due  to 
another.  But  I  apprehend  it  will  be  more 
clear  and  easy  to  consider  many  of  them  as 
duties  required  from,  rather  than  as  rights 
belonging  to,  particular  persons.  Thus,  for 
instance,  allegiance  is  usually,  and  therefore 
most  easily,  considered  as  the  duty  of  the 
people,  and  protection  as  the  duty  of  the  mag- 
istrate-; and  yet  they  are  reciprocally  the  rights 
as  well  as  duties  of  each  other.  Allegiance  is 
the  riglit  of  the  magistrate,  and  protection  the 
right  of  the  people. 

Persons  also  are  divided  by  the  law  into 
either  natural  persons,  or  artificial.  Natural 
persons  are  such  as  the  God  of  nature  formed 
us;  artificial  are  such  as  are  created  and  de- 
vised by  human  laws  for  the  purposes  of 
society  and  government,  which  are  called  cor- 
porations or  bodies  politic. 


2O0  HOW   TO   STUDY    LAW. 

The  rights  of  persons  considered  in  their 
natural  capacities  are  also  of  two  sorts,  abso- 
lute and  relative.  Absolute,  which  are  such 
as  appertain  and  belong  to  particular  men, 
merely  as  individuals  or  single  persons:  rela- 
tive, which  are  incident  to  them  as  members 
of  society,  and  standing  in  various  relations  to 
each  other.  The  first,  that  is,  absolute  rights, 
will  be  the  subject  of  the  present  chapter. 

By  the  absolute  rights  of  individuals,  we 
mean  those  which  are  so  in  their  primary  and 
strictest  sense ;  such  as  would  belong  to  their 
persons  merely  in  a  state  of  nature,  and  which 
every  man  is  entitled  to  enjoy,  whether  out  of 
^  society  or  in  it.  But  with  regard  to 
'-  -'  the  absolute  duties,  which  man  is  bound 
*to  perform  considered  as  a  mere  individual, 
it  is  not  to  be  expected  that  any  human  munic- 
ipal law  should  at  all  explain  or  enforce  them. 
For  the  end  and  intent  of  such  laws  being  only 
to  regulate  the  behaviour  of  mankind,  as  they 
are  members  of  society,  and  stand  in  various 
relations  to  each  other,  they  have  consequently 
no  concern  with  any  other  but  social  or  relative 
duties.  Let  a  man  therefore  be  ever  so  aban- 
doned in  his  principles,  or  vicious  in  his  prac- 
tice, provided  he  keeps  his  wickedness  to 
himself,  and  does  not  offend  against  the  rules 
of  public  decency,  he  is  out  of  the  reach  of 
human  laws.  But  if  he  makes  his  vices  pub- 
lic, though  they  be   such  as  seem  principally 


HOW  TO   STUDY   LAW.  201 

to  affect  himself,  (as  drunkenness,  or  the  like,) 
they  then  become,  by  the  bad  example  they 
set,  of  pernicious  efEects  to  society ;  and  there- 
fore it  is  then  the  business  of  human  laws  to 
correct  them.  Here  the  circumstance  of  pub- 
lication is  what  alters  the  nature  of  the  case. 
Public  sobriety  is  a  relative  duty,  and  therefore 
enjoined  by  our  laws;  private  sobriety  is  an 
absolute  duty,  which,  whether  it  be  performed 
or  not,  human  tribunals  can  never  know ;  and 
therefore  they  can  never  enforce  it  by  any 
civil  sanction.  But,  with  respect  to  rights,  the 
case  is  different.  Human  laws  define  and 
enforce  as  well  those  rights  which  belong  to  a 
man  considered  as  an  individual,  as  those 
which  belong  to  him  considered  as  related  to 
others. 

For  the  principal  aim  of  society  is  to  protect 
individuals  in  the  enjoyment  of  those  absolute 
rights,  which  were  vested  in  them  by  the  im- 
mutable laws  of  nature ;  but  which  could  not 
be  preserved  in  peace  without  that  mutual 
assistance  and  intercourse,  which  is  gained 
by  the  institution  of  friendly  and  social  com- 
munities. Hence  it  follows  that  the  first  and 
primary  end  of  human  laws  is  to  maintain  and 
regulate  these  absolute  rights  of  individuals. 
Such  rights  as  are  social  and  relative  result 
from,  and  are  posterior  to,  the  formation  of 
states  and  societies:  so  that  to  maintain  and 
regulate   these   is   clearly  a  subsequent  con- 


202  HOW   TO   STUDY   LAW. 

sideration.  And  therefore  the  principal  view 
of  human  law  is,  or  ought  always  to  be  to 
explain,  protect,  and  enforce  such  rights  as 
are  absolute,  which  in  *themselves  are  few  and 
simple:  and  then  such  rights  as  are  relative, 
^  which,  arising  from  a  variety  of  con- 
'-  -"  nexions,  will  be  far  more  numerous 
and  more  complicated.  These  will  take  up  a 
greater  space  in  any  code  of  laws,  and  hence 
may  appear  to  be  more  attended  to,  though  in 
reality  they  are  not,  than  the  rights  of  the 
former  kind.  Let  us  therefore  proceed  to 
examine  how  far  all  laws  ought,  and  how  far 
the  laws  of  England  actually  do,  take  notice 
of  these  absolute  rights,  and  provide  for  their 
lasting  security. 

The  absolute  rights  of  man,  considered  as  a 
free  agent,  endowed  with  discernment  to 
know  good  from  evil,  and  with  power  of  choos- 
ing those  n^easures  which  appear  to  him  to  be 
most  desirable,  are  usually  summed  up  in  one 
general  appellation,  and  denominated  the 
natural  liberty  of  mankind.  This  natural  lib- 
erty consists  properly  in  a  power  of  acting  as 
one  thinks  fit,  without  any  restraint  or  con- 
trol, unless  by  the  law  of  nature ;  being  a  right 
inherent  in  us  by  birth,  and  one  of  the  gifts  of 
God  to  man  at  his  creation,  when  he  endued 
him  with  the  faculty  of  free  will.  But  every 
man,  when  he  enters  into  society,  gives  up  a 
part  of  his  natural  liberty,  as  the  price  of  so 


HOW   TO   STUDY   LAW.  203 

valuable  a  purchase;  and,  in  consideration  of 
receiving  the  advantages  of  mutual  commerce, 
obliges  himself  to  conform  to  those  laws, 
which  the  community  has  thought  proper  to 
establish.  And  this  species  of  legal  obedience 
and  conformity  is  infinitely  more  desirable 
than  that  wild  and  savage  liberty  which  is 
sacrificed  to  obtain  it.  For  no  man,  that  con- 
siders a  moment,  would  wish  to  retain  the 
absolute  and  uncontrolled  power  of  doing 
whatever  he  pleases:  the  consequence  of 
which  is,  that  every  other  man  would  also 
have  the  same  power;  and  then  there  would 
be  no  security  to  individuals  in  any  of  the 
enjoyments  of  life.  Political,  therefore,  or 
civil  liberty,  which  is  that  of  a  member  of 
society,  is  no  other  than  natural  liberty  so  far 
restrained  by  human  laws  (and  no  farther)  as 
is  necessary  and  expedient  for  the  general 
advantage  of  the  public.  (<:)  Hence  we  may 
collect  that  the  law,  which  restrains  a  j.^  , 
man  from  doing  *mischief  to  his  fel- 
low-citizens, though  it  diminishes  the  natural, 
increases  the  civil  liberty  of  mankind;  but 
that  every  wanton  and  causeless  restraint  of 
the  will  of  the  subject,  whether  practised  by  a 
monarch,  a  nobility,  or  a  popular  assembly,  is 
a  degree  of  tyranny:  nay,  that  even  laws  them- 
selves, whether  made  with  or  without  our  con- 

(c)  Facultas  ejus,  quod  cuique  facere  libet  nisi  quid 
vi  aut  jure  prohibetur.     Inst.  1.3.  i. 


204  HOW   TO   STUDY   LAW. 

sent,  if  they  regulate  and  constrain  our 
conduct  in  matters  of  mere  indifference  with- 
out any  good  end  in  view,  are  regulations 
destructive  of  liberty;  whereas,  if  any  public 
advantage  can  arise  from  observing  such  pre- 
cepts, the  control  of  our  private  inclinations, 
in  one  or  two  particular  points,  will  con- 
duce to  preserve  our  general  freedom  in 
others  of  more  importance;  by  supporting 
that  state  of  society,  which  alone  can  secure 
our  independence.  Thus  the  statute  of  King 
Edward  IV,  [d)  which  forbade  the  fine  gentle- 
men of  those  times  (under  the  degree  of  a 
lord)  to  wear  pikes  on  their  shoes  or  boots  of 
more  than  two  inches  in  length,  was  law  that 
savoured  of  oppression;  because,  however 
ridiculous  the  fashion  then  in  use  might  ap- 
pear, the  restraining  it  by  pecuniary  penalties 
could  serve  no  purpose  of  common  utility. 
But  the  statute  of  King  Charles  II,  {e)  which 
prescribes  a  thing  seemingly  indifferent,  (a 
dress  for  the  dead,  who  are  all  ordered  to  be 
buried  in  woollen)  is  a  law  consistent  with  pub- 
lic liberty:  for  it  encourages  the  staple  trade, 
on  which  in  great  measure  depends  the  uni- 
versal good  of  the  nation.  So  that  laws,  when 
prudently  framed,  are  by  no  means  subversive, 
but  rather  introductive  of  liberty;  for,  as  Mr. 
Locke  has  well  observed,  (/)   where  there  is 

{d)  3  Edw.  IV,  c.  5.  {e)  30  Car.  II  St.i.  c.  3. 

(/)  On  Gov.  p.  2.  §57. 


HOW   TO  STUDY  LAW.  205 

no  law  there  is  no  freedom.  But  then,  on  the 
other  hand,  that  constitution  or  frame  of  gov- 
ernment, that  system  of  laws,  is  alone  calcu- 
lated to  maintain  civil  liberty,  which  leaves  the 
subject  entire  master  of  his  own  conduct,  ex- 
cept in  those  points  wherein  the  public  good 
requires  some  direction  or  restraint. 

The  idea  and  practice  of  this  political  or  civil 
liberty  flourish  in  their  highest  vigor  in  these 
kingdoms,  where  it  falls  *little  short  of  perfec- 
tion, and  can  only  be  lost  or  destroyed  by  the 

folly   or    demerits   of   its   owner:    the    ^^ 

I    1 2  7  I 
legislature  and  of  course  the  laws  of    '-         -" 

England,  being  peculiarly  adapted  to  the 
preservation  of  this  inestimable  blessing  even 
in  the  meanest  subject.  Very  different  from 
the  modern  constitutions  of  other  states,  on 
the  continent  of  Europe,  and  from  the  genius 
of  the  imperial  law;  which  in  general  are 
calculated  to  vest  an  arbitrary  and  despotic 
power,  of  controlling  the  actions  of  the  sub- 
ject, in  the  prince,  or  in  a  few  grandees.  And 
this  spirit  of  liberty  is  so  deeply  implanted  in 
our  constitution,  and  rooted  even  in  our  ver}'- 
soil,  that  a  slave  or  negro,  the  moment  he 
lands  in  England,  falls  under  the  protection  of 
the  laws,  and  so  far  becomes  a  freeman;  (g) 
though  the  master's  right  to  his  service  may 
possibly  still  continue 

The  absolute  rights  of  every  Englishman, 

{g)  Salk.  666.     See  ch.  14. 


2o6  HOW   TO   STUDY   LAW. 

which,  (taken  in  a  political  and  extensive 
sense,  are  usually  called  their  liberties,)  as 
they  are  founded  on  nature  and  reason,  so 
they  are  coeval  with  our  form  of  government; 
though  subject  at  times  to  fluctuate  and 
change;  their  establishment  (excellent  as  it  is) 
being  still  human.  At  some  times  we  have 
seen  them  depressed  by  overbearing  and 
tyrannical  princes;  at  others  so  luxuriant  as 
even  to  tend  to  anarchy,  a  worse  state  than 
tyranny  itself,  as  any  government  is  better 
than  none  at  all.  But  the  vigour  of  our  free 
constitution  has  always  delivered  the  nation 
from  these  embarrassments:  and,  as  soon  as 
the  convulsions  consequent  on  the  struggle 
have  been  over,  the  balance  of  our  rights 
and  liberties  has  settled  to  its  proper  level; 
and  their  fundamental  articles  have  been 
from  time  to  time  asserted  in  parliament, 
as  often  as  they  were  thought  to  be  in 
danger. 

First,  by  the  great  charter  of  liberties, 
which  was  obtained,  sword  in  hand,  from 
King  John,  and  afterwards,  with  some  altera- 
tions, confirmed  in  parliament  by  King  Henry 
the  Third,  his  son.  Which  charter  contained 
very  few  new  grants;  but,  as  Sir  Edward 
r*     ..-1    Coke  (//)  observes,   was   for   the  most 

I  2o 

^  -"  partdeclaratory  of  the  principal  grounds 
of  the  fundamental  *laws  of    England.     After- 

{h)  2  Inst,  proem. 


HOW  TO  STUDY   LAW.  20? 

wards  by  the  statute  called  confinnatio  carta- 
rum,  {i)  whereby  the  great  charter  is  directed  to 
be  allowed  as  the  common  law;  all  judgments 
contrary  to  it  are  declared  void ;  copies  of  it 
are  ordered  to  be  sent  to  all  cathedral  churches, 
and  read  twice  a  year  to  the  people,  and  sen- 
tence of  excommunication  is  directed  to  be  as 
constantly  denounced  against  all  those  that, 
by  word,  deed,  or  counsel,  act  contrary  thereto, 
or  in  any  degree  infringe  it.  Next,  by  a 
multitude  of  subsequent  corroborating  statutes 
(Sir  Edward  Coke,  I  think,  reckons  thirty- 
two,)  {k)  from  the  first  Edward  to  Henry  the 
Fourth.  Then,  after  a  long  interval,  by  the 
petition  of  right;  which  was  a  parliamentary 
declaration  of  the  liberties  of  the  people, 
assented  to  by  King  Charles  the  First  in  the 
beginning  of  his  reign.  Which  was  closely 
folio  vved  by  the  still  more  ample  concessions 
made  by  that  unhappy  prince  to  his  parlia. 
ment  before  the  fatal  rupture  between  them; 
and  by  the  many  salutary  laws,  particularly  the 
habeas  corpus  act,  passed  under  Charles  the 
Second.  To  these  succeeded  the  bill  of  rights, 
or  declaration  delivered  by  the  l(,»rds  and  com- 
mons to  the  prince  and  princess  of  Orange, 
13th  of  February,  1688;  and  afterwards  en- 
acted in  parliament,  when  they  became  king 
and  queen:  which  declaration  concludes  in 
these  remarkable  words:  "and  they  do  claim, 

{i)  25  Edw.  I,  {k)  2  Inst,  proem. 


2o8  HOW   TO   STUDY   LAW. 

demand,  and  insist  upon,  all  and  singular  the 
premises,  as  their  undoubted  rights  and  lib- 
erties." And  the  act  of  parliament  itself  (/) 
recognizes  "all  and  singular  the  rights  and 
liberties  asserted  and  claimed  in  the  said 
declaration  to  be  the  true,  ancient,  and  indubit- 
able rights  of  the  people  of  this  kingdom." 
Lastly,  these  liberties  were  again  asserted  at 
the  commencement  of  the  present  centur3^  in 
the  act  of  settlement^  (m)  whereby  the  crown 
was  limited  to  his  present  majesty's  illustrious 
house :  and  some  new  provisions  were  added, 
at  the  same  fortunate  era,  for  better  securing 
our  religion,  laws  and  liberties;  which  the 
statute  declares  to  be  "the  birthright  of  the 
people  of  England,"  according  to  the  ancient 
doctrine  of  the  common  law.  (n) 
r^       -,        *Thus  much  for  the  declaration  of 

I  ?Q 

■-  -^  our  rights  and  liberties.  The  rights 
themser^es,  thus  defined  by  these  several 
statutes, '  consist  in  a  number  of  private  im- 
munities;- which  will  appear  from  what  has 
been  premised,  to  be  indeed  no  other,  than 
either  that  residuum  of  natural  liberty,  which 
is  not  required  by  the  laws  of  society  to  be 
sacrificed  to  public  convenience;  or  else  those 
civil  privileges,  which  society  hath  engaged  to 
provide,    in   lieu    of    the   natural   liberties   so 

(/)  I  W.  and  M.  St.  2,  c.  2. 
(/«)  12  and  13  W.  Ill,  c.  2. 
(«)  Plowd.  55. 


HOW  TO   STUDY   LAW.  209 

given  up  by  individuals.  These  therefore 
were  formerly,  either  by  inheritance  or  pur- 
chase, the  rights  of  all  mankind;  but,  in  most 
other  countries  of  the  world  being  now  more 
or  less  debased  and  destroyed,  they  at  present 
may  be  said  to  remain,  in  a  peculiar  and 
emphatical  manner,  the  rights  of  the  people 
of  England.  And  these  may  be  reduced  to 
three  principal  or  primary  articles ;  the  right 
of  personal  security,  the  right  of  personal 
liberty  and  the  right  of  private  property: 
because,  as  there  is  no  other  known  method  of 
compulsion  or  of  abridging  man's  natural  free 
will,  but  by  an  infringement  or  diminution  of 
one  or  other  of  these  important  rights,  the 
preservation  of  these,  inviolate,  may  justly  be 
said  to  include  the  preservation  of  our  civil 
immunities  in  their  largest  and  most  extensive 
sense. 

I.  The  right  of  personal  security  consists  in 
a  person's  legal  and  uninterrupted  enjoyment 
of  his  life,  his  limbs,  his  body,  his  health,  and 
his  reputation. 

I.  Life  is  the  immediate  gift  of  God,  a  right 
inherent  by  nature  in  every  individual:  and  it 
begins  in  contemplation  of  law  as  soon  as  an 
infant  is  able  to  stir  in  the  mother's  womb. 
For  if  a  woman  is  quick  with  child,  and  by  a 
potion  or  otherwise,  killeth  it  in  her  womb;  01 
if  any  one  beat  her,  whereby  the  child  dieth  in 
her  body,  and  she  is  delivered  of  a  dead  child  ;•; 


210  HOW   TO   STUDY   LAW. 

this,  though  not  murder,  was  by  the  ancient 
law  homicide  or  manslaughter.  (^)  But  the 
modern  law  doth  not  look  *upon  this  offence 
^  in  quite  so  atrocious  a  light  but  merely 
'•         ^    as  a  heinous  misdemeanor.  (/) 

An  infant  in  ventre  sa  mere^  or  in  the 
mother's  womb,  is  supposed  in  law  to  be  born 
for  many  purposes.  It  is  capable  of  having  a 
legacy,  or  a  surrender  of  a  copyhold  estate, 
made  to  it.  It  may  have  a  guardian  assigned 
to  it;  {(f)  and  it  is  enabled  to  have  an  estate 
limited  to  its  use,  and  to  take  afterwards  by 
such  limitation  as  if  it  were  then  actually 
born.(r)  And  in  this  point  the  civil  law 
agrees  with  ours,  {s) 

2.  A  man's  limbs  (by  which  for  the  present 
we  only  understand  those  members  which 
may  be  useful  to  him  in  fight,  and  the  loss  of 
which  alone  amounts  to  mayhem  by  the  com- 
mon law)  are  also  the  gift  of  the  wise  Creator, 
to  enable  him  to  protect  himself  from  external 
injuries  in  a  state  of  nature.  To  these  there- 
fore he  has  a  natural  inherent  right;  and  they 


{o)  Sz  aliquis  mulierein  pregnanium  percusscrit, 
vel  ei  vefienum  dedirit,  per  quod  fecerit  abortivam;  si 
puerperiiun  jam  fur}naturnfue7-it,  et  maxivie  si fuerit 
ajiiinatuin,facit  homicidium.     Bracton,  /.  3  f.  21. 

{p)  3  Inst.  50.  {q)  Stat.  12  Car.  II,  c.  24. 

(r)Stat.  10  and  11  W.  Ill,  c.  16. 

(5)  Qui  if  I  utero  sunt,  in  jure  civili  intelliguntur  in 
reruin  natura  esse,  cum  de  eorutn  comniodo  agatur, 
Ff.  I.  5.  26. 


HOW   TO   STUDY   LAW.  211 

cannot    be    wantonly    destroyed    or    disabled 
without  a  manifest  breach  of  civil  liberty. 

Both  the  life  and  limbs  of  a  man  are  t  f  such 
high  value,  in  the  estimation  of  the  law  of 
England,  that  it  pardons  even  homicide  if 
committed  se  dcfendendo,  or  in  order  to  pre- 
serve them.  For  whatever  is  done  by  a  man, 
to  save  either  life  or  member,  is  looked  upon 
as  done  upon  the  highest  necessity  and  com- 
pulsion. Therefore,  if  a  man  through  fear  of 
death  or  mayhem  is  prevailed  upon  to  execute 
a  deed,  or  do  any  other  legal  act:  these^ 
though  accompanied  with  all  other  the  re- 
quisite solemnities,  may  be  afterwards 
avoided,  if  forced  upon-  him  by  a  well- 
grounded  apprehension  of  losing  his  life,  or 
even  his  limbs,  in  case  of  his  non  compli- 
ance. (/)  And  the  same  is  also  a  sufficient 
excuse  for  the  commission  of  many  misde- 
meanors, as  will  appear  in  the  fourth  book. 
The  constraint  a  man  is  under  in  these  cir.cum. 
stances  is  called  in  law  duress,  from  the  Latin 
diirities  of  which  there  are  two  *sorts :  duress 
of  imprisonment,  where  a  man  actually  ^^  , 
loses  his  liberty,  of  which  we  shall  •-  3  J 
presently  speak;  and  duress  per  viinas,  where 
the  hardship  is  only  threatened  and  impending, 
which  is  that  we  are  now  discoursing  of. 
Duress  per  minas  is  either  for  fear  of  loss  of 
life,  or  else  for  fear  of  mayhem,  or  loss  of  limb, 

(/)  3  Inst,  483- 


212  HOW   TO   STUDY   LAW. 

And  this  fear  must  be  upon  sufficient  reason; 
^^non,''  as  Bacton  expresses  it,  ''suspicio 
cujiislibet  vani  et  nieticiilosi  hominis,  sed  talis 
qui  possit  cadera  in  viriim  constantevi;  talis 
enifn  debet  esse  metus,  qui  in  se  cojitineat  vitce 
periculu7n^  aut  corporis  cruciatuni.'' {jti)  A  fear 
of  battery,  or  being  beaten,  though  never  so 
well  grounded,  is  no  duress;  neither  is  the  fear 
of  having  one's  house  burned,  or  one's  goods 
taken  away  and  destroyed;  because  in  these 
cases,  should  the  threat  be  performed,  a  man 
may  have  satisfaction  by  recovering  equivalent 
damages:  {w)  but  no  suitable  atonement  can 
be  made  for  the  loss  of  life  or  limb.  And  the 
indulgence  shewn  to  a  man  under  this,  the 
principal,  sort  of  duress,  the  fear  of  losing  his 
life  or  limbs,  agrees  also  with  that  maxim  of 
the  civil  law;  ignoscitur  ei  qui  sanguinem  suuni 
qualiter,  qualiter  redetnptum  voluit.  (;f) 

The  law  not  only  regards  life  and  member, 
and  protects  every  man  in  the  enjoyment  of 
them,  but  also  furnishes  him  with  everything 
necessary  for  their  support.  For  there  is  no 
man  so  indigent  or  wretched,  but  he  may  de- 
mand a  supply  sufficient  for  all  the  necessities 
of  life  from  the  more  opulent  part  of  the  com- 
munity, by  means  of  the  several  statutes  enacted 
for  the  relief  of  the  poor.    A  humane  provision ; 

{u)  1.2.  c.  5.  iiv)  2  Inst.  483. 

\x)  Ff.  48.  21.  I. 


HOW  TO   STUDY   LAW.  213 

yet,  though  dictated  by  the  principles  of 
society,  discountenanced  by  the  Roman  laws. 
For  the  edicts  of  the  emperor  Constantine, 
commanding  the  public  to  maintain  the  children 
of  those  who  were  unable  to  provide  for 
them,  in  order  to  prevent  the  murder  and 
exposure  of  infants,  an  institution  founded 
on  the  same  principle  as  our  foundling  hos- 
pitals, though  comprised  in  the  Theodosian 
code,  (f)  were  rejected  in  Justinian's  collec 
tion. 

*These  rights,  of  life  and  member,     ^^ 

I  ■?  2  I 
can  only  be  determined  by  the  death  of    "-         -■ 

the  person ;  which  was  formerly  accounted  to  be 
either  a  civil  or  natural  death.  The  civil  death 
commenced,  if  any  man  was  banished  or  ab- 
jured the  realm  [s)  by  the  process  of  the  com- 
mon law,  or  entered  into  religion  ;  that  is,  went 
into  a  monastery,  and  became  there  a  monk 
professed;  in  which  cases  he  was  absolutely 
dead  in  law,  and  his  next  heir  should  have  his 
estate.  For  such  banished  man  was  entirely 
cut  off  from  society;  and  such  a  monk,  upon 
his  profession,  renounced  solemnly  all  secular 
concerns:  and  besides,  as  the  popish  clergy 
claimed  an  exemption  from  the  duties  of  civil 
life  and  the  commands  of  the  temporal  magis- 
trate, the  genius  of  the  English  laws  would  not 
suffer  those  persons  to  enjoy  the  benefits  of 
society,  who  secluded  themselves  from  it,  and 

iy)  L.  II.  t.  27.  (,2)  Co.  Litt.  133. 


214  HOW   TO   STUDY   LAW. 

refused  to  submit  to  its  regulations,  (a)  A 
monk  was  therefore  accounted  civiliter  mor- 
tuus,  and  when  he  entered  into  religion  might, 
like  other  dying  men,  make  his  testament  and 
executors;  or,  if  he  made  none,  the  ordinary 
might  grant  administration  to  his  next  of  kin, 
as  if  he  were  actually  dead  intestate.  And 
such  executors  and  administrators  had  the 
same  power,  and  might  bring  the  same  actions 
for  debts  due  to  the  religious,  and  were  liable 
to  the  same  actions  for  those  dwe  from  him,  as 
if  he  were  naturally  deceased,  {b)  Nay,  so  far 
has  this  principle  been  carried,  that  when  one 
was  bound  in  a  bond  to  an  abbot  and  his  suc- 
cessors, and  afterwards  made  his  executors, 
and  professed  himself  a  monk  of  the  same 
abbey,  and  in  process  of  time  was  himself 
made  abbot  thereof ;  here  the  law  gave  him,  in 
the  capacity  of  abbot,  an  action  of  debt 
against  his  own  executors  to  recover  the 
money  due.(f)  In  short,  a  monk  or  religious 
was  so  effectually  dead  in  law,  that  a  lease 
made  even  to  a  third  person,  during  the  life 
(generally)  of  one  who  afterwards  became  a 
monk,  determined  by  such  his  entry  into  reli- 
gion :  for  which  reason  leases,  and  other  con- 
veyances for  life,  were  usually  made  to  have 

{a)  This  was  also  a  rule  in  the  feudal  law,  /.  2.  /.  21. 
''des/it  esse  mzles  seculi,  gut /actus  est  miles  Christi; 
nee  beneficium  pertinet  ad  eum  qui  non  debet  gsrere 
officitim. 

(b)  Litt.  §200.  {f)  Co.  Litt.   133. 


HOW   TO   STUDY   LAW.  215 

and  to  hold  for  the  term  of  one's  natural 
life,  [d)  But,  *even  in  the  time  of  pop-  j.^ 
ery,  the  law  of  England  took  no  cogniz-  ^  ■' 
ance  of  profession  in  any  foreign  country, 
because  the  fact  could  not  be  tried  in  our 
courts;  (c)  and  therefore,  since  the  reforma- 
tion, this  disability  is  held  to  be  abolished:  (/) 
as  is  also  the  disability  of  banishment,  conse- 
quent upon  abjuration,  by  statute  21  Jac.  I, 
c.  28. 

This  natural  life  being,  as  was  before 
observed,  the  immediate  donation  of  the  great 
Creator,  cannot  legally  be  disposed  of  or 
destroyed  by  any  individual,  neither  by  the 
person  himself,  nor  by  any  other  of  his  fellow- 
creatures,  merely  upon  their  own  authority. 
Yet  nevertheless  it  may,  by  the  divine  permis- 
sion, be  frequently  forfeited  for  the  breach  of 
those  laws  of  society,  which  are  enforced  by 
the  sanction  of  capital  punishments;  of  the 
nature,  restrictions,  expedients,  and  legality 
of  which,  we  may  hereafter  more  conveniently 
inquire  in  the  concluding  book  of  these  com- 
mentaries. At  present,  I  shall  only  observe, 
that  whenever  the  constitution  of  a  state  vests 
in  any  man,  or  body  of  men,  a  power  of 
destroying  at  pleasure,  without  the  direction  of 
laws,  the  lives  or  members  of  the  subject,  such 
constitution  is  in  the  highest  degree  tyrannical; 

{d)  2  Rep.  48.     Co.  Litt.  132. 

\e)  Co.  Litt.  132.  (/)  I  Salk.  162. 


2i6  HOW   TO   STUDY    LAW. 

and  that,  whenever  any  laws  direct  such  de- 
struction for  light  and  trivial  causes,  such  laws 
are  likewise  tyrannical,  though  in  an  inferior 
degree ;  because  here  the  subject  is  aware  of 
the  danger  he  is  exposed  to,  and  may,  by  pru- 
dent caution,  provide  against  it.  The  statute 
law  of  England  does  therefore  very  seldom, 
and  the  common  law  does  never,  inflict  any 
punishment  extending  to  life  or  limb,  unless 
upon  the  highest  necessity;  and  the  constitu- 
tion is  an  utter  stranger  to  any  arbitrary  power 
of  killing  or  maiming  the  siibject  without  the 
express  warrant  of  law,  ''Nullus  liber  komo^" 
says  the  great  charter,  {g)  ""aliqiio  modo 
destrnatiii\  nisi  per  legale  jiidiciiin  pariuni 
suoriim  aut  per  legem  terrcs.''  Which  words, 
^'aliquo  modo  destruattir,"  according  to  Sir 
Edward  Coke,  (//)  include  a  prohibition,  not 
only  of  killing  and  maiming,  but  also  of  tortur- 
ing, (to  which  our  laws  are  strangers,)  and  of 
every  oppression  by  colour  of  an  illegal 
authority.  And  it  is  enacted  by  the  statute 
5.  Edw.  Ill,  c.  9,  that  no  man  shall  be  fore- 
judged of  life  or  limb  contrary  to  the  great 
P^  ,  charter  and  the  *law  of  the  land:  and 
«■  ^^"^J  again,  by  statute  28  Edw.  Ill,  c.  3, 
that  no  man  shall  be  put  to  death,  without 
being  brought  to  answer  by  due  process  of  law. 

3.   Besides   those  limbs  and   members   that 
may  be  necessary  to  a  man,  in  order  to  defend 

{g)  c.  29.  {h)  2  Inst.  48. 


HOW   TO   STUDY   LAW.  217 

himself  or  annoy  his  enemy,  the  rest  of  his 
person  or  body  is  also  entitled,  by  the  same 
natural  right,  to  security  from  the  corporal 
insults  of  menaces,  assaults,  beating,  and 
wounding;  though  such  insults  amount  not  to 
destruction  of  life  or  member. 

4.  The  preservation  of  a  man's  health  from 
such  practices  as  may  prejudice  or  annoy  it; 
and 

5.  The  security  of  his  reputation  or  good 
name  from  the  arts  of  detraction  and  slander, 
are  rights  to  which  every  man  is  entitled,  by 
reason  and  natural  justice;  since,  without 
these,  it  is  impossible  to  have  the  perfect 
enjoyment  of  any  other  advantage  or  right. 
But  these  three  last  articles  (being  of  much 
less  importance  than  those  which  have  gone 
before,  and  those  which  are  yet  to  come,)  it 
will  suiBce  to  have  barely  mentioned  among 
the  rights  of  persons:  referring  the  more 
minute  discussion  of  their  several  branches  to 
those  parts  of  our  commentaries  which  treat 
of  the  infringement  of  these  rights,  under  the 
head  of  personal  wrongs. 

II.  Next  to  personal  security,  the  law  of 
England  regards,  asserts,  and  preserves,  the 
personal  liberty  of  individuals.  This  personal 
liberty  consists  in  the  power  of  locomotion,  of 
changing  situation,  or  moving  one's  person  to 
whatsoever  place  one's  own  inclination  may 
direct,    without    imprisonment    or    restraint, 


2i8  HOW  TO  STUDY   LAW. 

unless  by  due  course  of  law.  Concerning 
which  we  may  make  the  same  observations  as 
upon  the  preceding  article,  that  it  is  a  right 
strictly  natural;  that  the  laws  of  England 
have  never  abridged  it  without  sufficient 
cause;  and  that,  in  this  kingdom,  it  cannot 
ever  be  abridged  at  the  mere  discretion  of  the 
magistrate,  without  the  explicit  permission  of 
the  laws.  Here  again  the  language  of  the 
great  *charter  (z)  is,  that  no  freeman  shall  be 
taken  or  imprisoned  but  by  the  lawful 
'-  ^^■'  judgment  of  his  equals,  or  by  the  law 
of  the  land.  And  many  subsequent  old 
statutes  {j)  expressly  direct,  that  no  man  shall 
be  taken  or  imprisoned  by  suggestion  or  peti- 
tion to  the  king  or  his  council,  unless  it  be  by 
legal  indictment,  or  the  process  of  the  com- 
mon law.  By  the  petition  of  right,  3  Car.  I,  it 
is  enacted,  that  no  freeman  shall  be  impris- 
oned or  detained  without  cause  shown,  to 
which  he  may  make  answer  according  to  law. 
By  16,  Car.  I,  c.  10,  if  any  person  be  restrained 
of  his  liberty  by  order  or  decree  of  any  illegal 
court,  or  by  command  of  the  king's  majesty  in 
person,  or  by  warrant  of  the  council  board,  or 
of  any  of  the  privy  council,  he  shall,  upon 
demand  of  his  counsel,  have  a  writ  of  habeas 
corpus,  to  bring  his  body  before  the  court  of 

{i)  c.  29. 

(7)  5  Edw.  Ill,   c.  9.      25  Edw.  Ill,    St.  5.  c.  4.      28 
Edw.  Ill,  c.  3. 


HOW  TO   STUDY   LAW.  219 

king's  bench  or  common  pleas,  who  shall 
determine  whether  the  cause  of  his  commit- 
ment be  just,  and  thereupon  do  as  to  justice 
shall  appertain.  And  by  31  Car,  II,  c.  2,  com- 
monly called  the  habeas  corpus  act,  the  methods 
of  obtaining  this  writ  are  so  plainly  pointed 
out  and  enforced,  that,  so  long  as  this  statute 
remains  unimpeached,  no  subject  of  England 
can  be  long  detained  in  prison,  except  in  those 
cases  in  which  the  law  requires  and  justifies 
such  detainer.  And,  lest  this  act  should  be 
evaded  by  demanding  unreasonable  bail,  or 
sureties  for  the  prisoner's  appearance,  it  is 
declared  by  i  W.  and  M.  St.  2,  c.  2,  that  ex- 
cessive bail  ought  not  to  be  required. 

Of  great  importance  to  the  public  is  the 
preservation  of  this  personal  liberty;  for  if 
once  it  were  left  in  the  power  of  any,  the  high- 
est, magistrate  to  imprison  arbitrarily  whom- 
ever he  or  his  officers  thought  proper,  (as  in 
France  it  is  daily  practiced  by  the  crown,)  (k) 
there  would  soon  be  an  end  of  all  other  rights 
and  immunities.  Some  have  thought  that 
unjust  attacks,  even  upon  life  or  property,  at 
the  arbitrary  will  of  the  magistrate,  *are  less 
dangerous  to  the  commonwealth  than  ^^ 
such  as  are  made  upon  the  personal  lib-  L  3  J 
erty  of    the  subject.      To  bereave  a  man  of 

i^k)  I  have  been  assured,  upon  good  authority  taat, 
during  the  mild  administration  of  Cardinal  Fleury,  above 
54,000  lettres  de  cachet  were  issued,  upon  the  single 
ground  of  the  famous  bull  unigenitus. 


2  20  HOW   TO   STUDY    LAW. 

life,  or  by  violence  to  confiscate  his  estate, 
without  accusation  or  trial,  would  be  so  gross 
and  notorious  an  act  of  despotism,  as  must  at 
once  convey  the  alarm  of  tyranny  throughout 
the  whole  kingdom;  but  confinement  of  the 
person,  by  secretly  hurrying  him  to  gaol, 
where  his  sufferings  are  unknowm  or  forgot- 
ten, is  a  less  public,  a  less  striking,  and  there- 
fore a  more  dangerous  engine  of  arbitrary 
government.  And  yet  sometimes,  when  the 
state  is  in  real  danger,  even  this  may  be  a 
necessary  measure.  But  the  happiness  of  our 
constitution  is,  that  it  is  not  left  to  the  execu- 
tive powder  to  determine  when  the  danger  of 
the  state  is  so  great  as  to  render  this  measure 
expedient;  for  it  is  the  parliament  only,  or 
legislative  power,  that,  whenever  it  sees 
proper,  can  authorize  the  crown,  by  suspend- 
ing the  habeas  corpus  act  for  a  short  and  limited 
time,  to  imprison  suspected  persons  without 
giving  any  reason  for  so  doing;  as  the  senate 
of  Rome  was  wont  to  have  recourse  to  a  dic- 
tator, a  magistrate  of  absolute  authority,  when 
they  judged  the  republic  in  any  imminent  dan- 
ger. The  decree  of  the  senate,  which  usually 
preceded  the  nomination  of  this  magistrate, 
'' dent  operam  consules,  ne  quid respuhlica  detri- 
vicnti  capiat^'"  was  called  the  senatiis  consultum 
ultimce  necessitatis.  In  like  manner  this  ex- 
periment ought  only  to  be  tried  in  cases  of 
extreme  emergency;    and  in  these  the  nation 


HOW   TO   STUDY   LAW.  221 

parts  with  its  liberty  for  awhile,  in  order  to 
preserve  it  for  ever. 

The  confinement  of  the  person,  in  any  wise, 
is  an  imprisonment;  so  that  the  keeping  a 
man  against  his  will  in  a  private  house,  putting 
him  in  the  stocks,  arresting  or  forcibly  detain- 
ing him  in  the  street,  is  an  imprisonment.  (/) 
And  the  law  so  much  discourages  unlawful 
confinement,  that  if  a  man  is  under  duress  of 
imprisomnent,  which  we  before  explained  to 
mean  a  compulsion  by  an  illegal  restraint  of 
liberty,  until  he  seals  a  bond  or  the  like ;  he 
may  allege  this  duress,  and  avoid  the  ^^  , 
extorted  bond.  But  if  a  man  be  law-  '-  -' 
fully  imprisoned,  *and,  either  to  procure  his 
discharge,  or  on  any  other  fair  account,  seals, 
a  bond  or  a  deed,  this  is  not  by  duress  of  im- 
prisonment, and  he  is  not  at  liberty  to  avoid 
it,  (w)  To  make  imprisonment  lawful,  it  must 
either  be  by  process  from  the  courts  of  judica- 
ture, or  by  warrant  from  some  legal  officer 
having  authority  to  commit  to  prison;  which 
warrant  must  be  in  writing,  under  the  hand 
and  seal  of  the  magistrate,  and  express  the 
causes  of  the  commitment,  in  order  to  be  ex- 
amined into,  if  necessary,  upon  a  habeas 
corpus.  If  there  be  no  cause  expressed,  the 
gaoler  is  not  bound  to  detain  the  prisoner: 
{n)  for  the  law  judges,  in  this  respect,  saith  Sir 

(/)  2  Inst.  589.  {m)  2  Inst.  482. 

(«)  Ibid.  52.  53. 


232  HOW   TO  STUDY   LAW. 

Edward  Coke,  like  Festus  the  Roman  gov- 
ernor, that  it  is  unreasonable  to  send  a  pris- 
oner, and  not  to  signify  withal  the  crimes 
alleged  against  him. 

A  natural  and  regular  consequence  of  this 
personal  liberty  is,  that  every  Englishman  may 
claim  a  right  to  abide  in  his  own  country  so 
long  as  he  pleases;  and  not  to  be  driven  from 
it  unless  by  the  sentence  of  the  law.  The 
king,  indeed,  by  his  royal  prerogative,  may 
issue  out  his  writ  ne  exeat  regnuin,  and  pro- 
hibit any  of  his  subjects  from  going  into 
foreign  parts  without  license,  {o)  This  may  be 
necessary  for  the  public  service  and  safeguard 
of  the  commonwealth.  But  no  power  on 
earth,  except  the  authority  of  parliament,  can 
send  any  subject  of  England  out  of  the  land 
against  his  will;  no,  not  even  a  criminal.  For 
exile  and  transportation  are  punishments  at 
present  unknown  to  the  common  law;  and, 
whenever  the  latter  is  now  inflicted,  it  is 
either  by  the  choice  of  the  criminal  himself  to 
escape  a  capital  punishment,  or  else  by  the 
express  direction  of  some  modern  act  of  parlia- 
ment. To  this  purpose  the  great  charter  (/) 
declares,  that  no  freeman  shall  be  banished, 
unless  by  the  judgment  of  his  peers,  or  by  the 
law  of  the  land.  And  by  the  habeas  corpus 
act,  31  Car.  II,  c.  2,  (that  second  magna  carta, 
and   stable    bulwark   of    our    liberties,)    it   is 

ip)  F.  N.  B.  85.  ip)  C.  29. 


HOW   TO   STUDY   LAW.  223 

enacted,  that  no  subject  of  this  realm,  who  is 
an  inhabitant  of  England,  Wales,  or  Berwick, 
shall  be  sent  prisoner  into  Scotland,  Ireland, 
Jersey,  Guernsey,  or  places  beyond  the  seas, 
(where  *they  cannot  have  the  full  benefit  and 
protection  of  the  common  law) ;  but  -^  , 
that  all  such  imprisonments  shall  be  ^  -" 
illegal ;  that  the  person  who  shall  dare  to  com- 
mit another  contrary  to  this  law,  shall  be  dis- 
abled from  bearing  any  office,  shall  incur  the 
penalty  of  a  prcemnnire,  and  be  incapable  of 
receiving  the  King's  pardon:  and  the  party 
suffering  shall  also  have  his  private  action 
against  the  person  committing,  and  all  his 
aiders,  advisers  and  abettors;  and  shall  recover 
treble  costs;  besides  his  damages,  which  no  jury 
shall  assess  at  less  than  five  hundred  pounds. 

The  law  in  this  respect  is  so  benignly  and 
liberally  construed  for  the  benefit  of  the  sub- 
ject, that,  though  within  the  realm  the  king 
may  command  the  attendance  and  service  of 
all  his  liegemen,  yet  he  cannot  send  any  man 
out  of  the  realm,  even  upon  ihe  public  ser- 
vice ;  excepting  sailors  and  soldiers,  the  nature 
of  whose  employment  necessarily  implies  an  ex- 
ception: he  cannot  even  constitute  a  man  lord 
deputy  or  lieutenant  of  Ireland  against  his 
will,  nor  make  him  a  foreign  ambassador,  {q) 
For  this  might,  in  reality,  be  no  more  than  an 
honourable  exile. 

(^)  2  Inst.  46. 


124  HOW  TO   STUDY   LAW. 

III.  The  third  absolute  right,  inherent  in 
every  Englishman,  is  that  of  property:  which 
consists  in  the  free  use,  enjoyment,  and  dis- 
posal of  all  his  acquisitions,  without  any  con- 
trol or  diminution,  save  only  by  the  laws  of 
the  land.  The  origin  of  private  property  is 
probably  founded  in  nature,  as  will  be  more 
fully  explained  in  the  second  book  of  the  ensu- 
ing commentaries:  but  certainly,  the  modifica- 
tions under  which  we  at  present  find  it,  the 
method  of  conserving  it  in  the  present  owner, 
and  of  translating  it  from  man  to  man,  are 
entirely  derived  from  society;  and  are  some 
of  those  civil  advantages,  in  exchange  for 
which  every  individual  has  resigned  a  part  of 
his  natural  liberty.  The  laws  of  England  are 
therefore,  in  point  of  honour  and  justice, 
extremely  watchful  in  ascertaining  and  pro- 
tecting this  right.  Upon  this  principle  the 
great  charter  (r)  has  declared  that  no  freeman 
shall  be  disseised,  or  divested,  of  his  freeliold, 
or  of  his  liberties,  or  free  *customs  but  by  the 
r*  -I  judgment  of  his  peers,  or  by  the  law  of 
^  -■  the  land.  And  by  a  variety  of  ancient 
statutes  (s)  it  is  enacted  that  no  man's  lands 
or  goods  shall  be  seized  into  the  king's  hands, 
against  the  great  charter,  and  the  law  of  the 
land;    and  that  no  man  shall  be  disinherited, 

(r)  C.  29. 

{s)  5  Edw.  Ill,  c.  (J.    25  Edw.  Ill,  St.  5.  c.  4.    28  Edw 
III.  c.  3. 


HOW  TO   STUDY   LAW.  225 

nor  put  out  of  his  franchises  or  freehold,  unless 
he  be  duly  brought  to  answer,  and  be  fore- 
judged by  course  of  law ;  and  if  anything  be 
done  to  the  contrary  it  shall  be  redressed  and 
holden  for  none. 

wSo  great  moreover  is  the  regard  of  the  law 
for  private  property,  that  it  will  not  authorize 
the  least  violation  of  it;  no,  not  even  for  the 
general  good  of  the  whole  community.  If  a 
new  road,  for  instance,  were  to  be  made 
through  the  grounds  of  a  private  person,  it 
might  perhaps  be  extensively  beneficial  to  the 
public;  but  the  law  permits  no  man,  or  set  of 
men  to  do  this  without  consent  of  the  owner 
of  the  land.  In  vain  may  it  be  urged,  that  the 
good  of  the  individual  ought  to  yield  to  that 
of  the  community;  for  it  would  be  dangerous 
to  allow  any  private  man,  or  even  any  public 
tribunal,  to  be  the  judge  of  this  common  good, 
and  to  decide  whether  it  be  expedient  or  no. 
Besides  the  public  good  is  in  nothing  more 
essentially  interested,  than  in  the  protection  of 
every  individual's  private  rights,  as  modelled 
by  the  municipal  law.  In  this  and  similar 
cases  the  legislature  alone  can,  and  indeed 
frequently  does  interpose,  and  compel  the 
individual  to  acquiesce.  But  how  does  it  inter- 
pose and  compel?  Not  by  absolutely  stripping 
the  subject  of  his  property  in  an  arbitrary 
manner;  but  by  giving  him  a  full  indemnifica- 
tion and  equivalent  for  the  injury  thereby  sus- 


226  HOW   TO   STUDY   LAW. 

tained.  The  public  is  now  considered  as  an 
individual,  treating  with  an  individual  for  an 
exchange.  All  that  the  legislature  does  is  to 
oblige  the  owner  to  alienate  his  possessions  for 
a  reasonable  price;  and  even  this  is  an  exer- 
tion of  power,  which  the  legislature  indulges 
with  caution,  and  which  nothing  but  the  legis- 
lature can  perform. 

*Nor  is  this  the  only  instance  in 
^  ^"^^-l  which  the  law  of  the  land  has  post- 
poned even  public  necessity  to  the  sacred  and 
inviolable  rights  of  private  property.  For  no 
subject  of  England  can  be  constrained  to  pay 
any  aids  or  taxes,  even  for  the  defence  of  the 
realm  or  the  support  of  government,  but  such 
as  are  imposed  by  his  own  consent,  or  that  of 
his  representatives  in  parliament.  By  the 
statute  25  Edw.  I,  c.  5  and  6,  it  is  provided 
that  the  king  shall  not  take  any  aids  or  tasks, 
but  by  the  common  assent  of  the  realm.  And 
what  that  common  assent  is,  is  more  fully  ex- 
plained by  34  Edw.  I.,  St,  4.  c.  i,  which  (t)  en- 
acts, that  no  talliage  or  aid  shall  be  taken 
without  the  assent  of  the  archbishops,  bishops 
earls,  barons,  knights,  burgesses,  and  other 
freemen  of  the  land:    and  again  by  14  Edw. 

(/)  See  the  introduction  to  the  great  charter  (t'rt'/A  Ox 
on)  suh  anno  1297;  wherein  it  is  shewn  that  this  statute 
de  talliagio  nan  concedendo,  supposed  to  have  been 
made  in  34  Edw.  I,  is  in  reality,  nothing  more  than  a 
sort  of  translation  into  Latin  of  the  confirmatio  carta- 
rum,  25  Edw.  I,  which  was  originally  published  in  the 
Norman  language. 


HOW   TO   STUDY   LAW.  22/ 

III,  St.  2,  c.  I,  the  prelates,  earls,  barons  and 
commons,  citizens,  burgesses  and  merchants, 
shall  not  be  charged  to  make  any  aid,  if  it  be 
not  by  the  common  assent  of  the  great  men 
and  commons  in  parliament.  And  as  this 
fundamental  law  had  been  shamefully  evaded 
under  many  succeeding  princes,  by  compul- 
sive loans,  and  benevolences  extorted  without  a 
real  and  voluntary  consent,  it  was  made  an 
article  in  the  petition  of  right,  3  Car.  I,  that 
no  man  shall  be  compelled  to  yield  any  gift, 
loan,  or  benevolence,  tax,  or  such  like  charge, 
without  common  consent  by  act  of  parliament. 
And,  lastly,  by  the  statute  i  W.  and  M.  St. 
2,  c.  2,  it  is  declared,  that  levying  money  for 
or  to  the  use  of  the  crown,  by  pretence  or 
prerogative,  without  grant  of  parliament,  or 
for  longer  time,  or  in  other  manner,  than  the 
same  is  or  shall  be  granted ;  is  illegal. 

In  the  three  preceding  articles  we  have 
taken  a  short  view  of  the  principal  absolute 
rights  which  appertain  to  every  Englishman. 
But  in  vain  would  these  rights  be  declared, 
ascertained,  and  protected  *by  the  dead  letter 
of  the  laws,  if  the  *constitution  had  provided 
no  other  method  to  secure  their  actual  -^  ^ 
enjoyment.  It  has  therefore  estab-  L  4  • 
lished  certain  other  auxiliary  subordinate 
rights  of  the  subject,  which  serve  principally 
as  outworks  or  barriers  to  protect  and  maintain 
inviolate  the  three  great  and  primary  rights, 


aaS  HOW    TO   STUDY   LAW. 

of    personal    security,    personal    liberty,    and 
private  property.     These  are, 

1.  The  constitution,  powers,  and  privileges 
of  parliament ;  of  which  I  shall  treat  at  large 
in  the  ensuing  chapter. 

2.  The  limitation  of  the  king's  prerogative, 
by  bounds  so  certain  and  notorious,  that  it  is 
impossible  he  should  either  mistake  or  legally 
exceed  them  without  the  consent  of  the 
people.  Of  this,  also,  I  shall  treat  in  its 
proper  place.  The  former  of  these  keeps  the 
legislative  power  in  due  health  and  vigor,  so 
as  to  make  it  improbable  that  laws  should  be 
enacted  destructive  of  general  liberty:  the 
latter  is  a  guard  upon  the  executive  power  by 
restraining  it  from  acting  either  beyond  or  in 
contradiction  to  the  laws,  that  are  framed  and 
established  by  the  other. 

3.  A  third  subordinate  right  of  every  Eng- 
lishman is  that  of  applying  to  the  courts  of 
justice  for  redress  of  injuries.  Since  the  law 
is  in  England  the  supreme  arbiter  of  every 
man's  life,  liberty,  and  property,  courts  of 
justice  must  at  all  times  be  open  to  the  sub- 

\^  ject,  and  the  law  be  duly  administered  therein. 
The  emphatical  words  of  magna  carta  {u) 
spoken  in  the  person  of  the  king,  who  in  judg- 
ment of  law  (says  Sir  Edward  Coke,  {w)  is 
ever  present  and  repeating  them  in  all  his 
courts,  are  these;  nulli  vendetnus^  milli  nega- 
(«)  C.  29.  (w)  2  Inst.  55. 


HOW   TO   STUDY   LAW.  229 

binius,  aut  dijferemus  rectum  vel  justitiam: 
"and  therefore  every  subject,"  continues  the 
same  learned  author,  "for  injury  done  to  him 
ill  bonis,  in  t  err  is,  vel  persona,  by  any  other 
subject,  be  he  ecclesiastical  or  temporal,  with- 
out any  exception,  may  take  his  remedy  by  the 
course  of  the  law,  and  have  justice  and  right 
for  the  injury  done  to  him,  freely  without  sale, 
fully  without  any  denial,  and  speedily  without 
delay."  It  were  endless  to  enumerate  all  the 
affirmative  acts  of  parliament,  *  wherein  justice 
is  directed  to  be  done  according  to  the  p^.  _ 
law  of  the  land ;  and  what  that  law  is  ■-  -' 
every  subject  knows,  or  may  know,  if  he 
pleases ;  for  it  depends  not  upon  the  arbitrary 
will  of  any  judge,  but  is  permanent,  fixed,  and 
unchangeable,  unless  by  authority  of  parlia- 
ment. I  shall,  however,  just  mention  a  few 
negative  statutes,  whereby  abuses,  perversions, 
or  delays  of  justice,  especially  by  the  preroga- 
tive, are  restrained.  It  is  ordained  by  magna 
carta  i^x)  that  no  freeman  shall  be  outlawed, 
that  is,  put  out  of  the  protection  and  benefit  of 
the  laws,  but  according  to  the  law  of  the  land. 
By  2  Edw.  Ill,  c.  8,  and  11  Ric.  II,  c.  10,  it  is 
enacted  that  no  commands  or  letters  shall  be 
sent  under  the  great  seal  or  the  little  seal,  the 
signet,  or  privy  seal,  in  disturbance  of  the 
law;  or  to  disturb  01  delay  common  right: 
and,     though     such     commandments     should 

{x)  c.  29., 


230  HOW   TO   STUDY   LAW 

come,  the  judges  shall  not  cease  to  do  right; 
which  is  also  made  a  part  of  their  oath  by 
statute  i8  Edw.  Ill,  St.  4.  And  by  i  W.  and 
M.  St.  2,  c.  2,  it  is  declared,  that  the  pre- 
tended power  of  suspending,  or  dispensing 
with  laws,  or  the  execution  of  laws,  by  legal 
authority,  without  consent  of  parliament,  is 
illegal. 

Not  only  the  substartial  part,  or  judicial 
decision,  of  the  law,  but  also  the  formal  part, 
or  method  of  proceeding,  cannot  be  altered  but 
by  parliament;  for,  if  once  those  outworks 
were  demolished,  there  would  be  an  inlet  to  all 
manner  of  innovation  in  the  body  of  the  law 
itself.  The  king,  it  is  true,  may  erect  new 
courts  of  justice;  but  then  they  must  proceed 
according  to  the  old  established  forms  of  the 
common  law.  For  which  reason  it  is  declared, 
in  the  statute  16  Car.  I,  c.  10,  upon  the  disso- 
lution of  the  court  of  starchamber,  that  neither 
his  majesty,  nor  his  privy  council  have  any 
jurisdiction,  power,  or  authority,  by  English 
bill,  petition,  articles,  libel,  (which  were  the 
course  of  proceeding  in  the  starchamber,  bor- 
rowed from  the  civil  law,)  or  by  any  other 
arbitrary  way  whatsoever,  to  examine,  or 
draw  into  question,  determine,  or  dispose  of 
the  lands  or  goods  of  any  subjects  of  this  king- 
dom ;  but  that  the  same  ought  to  be  tried  and 
letermined  in  the  ordinary  courts  of  justice, 
ind  by  course  of  la-w^ 


HOW   TO   STUDY   LAW.  231 

4.  *If  there  should  happen  any  un-  -^ 
common  injury,  or  infringement  of  the  ^  -' 
rights  before  mentioned,  which  the  ordinary 
course  of  law  is  too  defective  to  reach,  there 
still  remains  a  fourth  subordinate  right,  ap- 
pertaining to  every  individual,  namely,  the 
right  of  petitioning  the  king,  or  either  house 
of  parliament,  for  the  redress  of  grievances. 
In  Russia  we  are  told  (j)  that  the  Czar  Peter 
established  a  law,  that  no  subject  might  peti- 
tion the  throne  till  he  had  first  petitioned  two 
different  ministers  of  state.  In  case  he 
obtained  justice  from  neither,  he  might  then 
present  a  third  petition  to  the  prince;  but 
upon  pain  of  death,  if  found  to  be  in  the 
wrong:  the  consequence  of  which  was,  that 
no  one  dared  to  offer  such  third  petition ;  and 
grievances  seldom  falling  under  the  notice  of 
the  sovereign,  he  had  little  opportunity  to 
redress  them.  The  restrictions,  for  some 
there  are,  which  are  laid  upon  petitioning  in 
England,  are  of  a  nature  extremely  different; 
and,  while  they  promote  the  spirit  of  peace, 
they  are  no  check  upon  that  of  liberty.  Care 
only  must  be  taken,  lest,  under  the  pretence 
of  petitioning,  the  subject  be  guilty  of  any  riot 
or  tumult,  a§  happened  in  the  opening  of  the 
memorable  parliament  in  1640:  and,  to  pre- 
vent this,  it  is  provided  by  the  statute  13  Car. 
II,  St.  I,  c.  5,  that  no  petition  to  the  king,  01 

(7)  Montesq.  Sp.  L.  xii.  26. 


232  HOW   TO   STUDY    LAW. 

either  house  of  parliament,  for  any  alteration 
in  church  or  state,  shall  be  signed  by  above 
twenty  persons,  unless  the  matter  thereof  be 
approved  by  three  justices  of  the  peace,  or  the 
major  part  of  the  grand  jury  in  the  country; 
and  in  London  by  the  lord  mayor,  aldermen, 
and  common  council;  nor  shall  any  petition  be 
presented  by  more  than  ten  persons  at  a  time. 
But  under  these  regulations  it  is  declared  by 
the  statute  i  W.  and  M.  St.  2,  c.  2,  that  the 
subject  hath  a  right  to  petition;  and  that  all 
commitments  and  prosecutions  for  such  peti- 
tioning are  illegal. 

5.  The  fifth  and  last  auxiliary  right  of  the 
subject,  that  I  shall  at  present  mention,  is  that 
of  having  arms  for  their  defence,  suitable  to 
their  condition  and  degree,  and  such  as  are 
*allowed  by  law.  Which  is  also  de- 
'-^'^■*-'  clared  by  the  same  statute,  i  W.  and 
M.  St.  2,  c.  2,  and  is  indeed  a  public  allow- 
ance, under  due  restrictions,  of  the  natural 
right  of  resistance  and  self  -  preservation, 
when  the  sanctions  of  society  and  laws  are 
found  insufficient  to  restrain  the  violence  of 
oppression. 

In  these  several  articles  consist  the  rights, 
t)r,  as  they  are  frequently  termed,  the  liberties 
of  Englishmen:  liberties  more  generally 
talked  of  than  thoroughly  understood;  and 
yet  highly  necessary  to  be  perfectly  known 
and    considered   by  every  man  of  rank   and 


HOW  TO   STUDY   LAW.  233 

property,  lest  his  ignorance  of  the  points 
whereon  they  are  founded  should  hurry  him 
into  faction  and  licentiousness  on  the  one 
hand,  or  a  pusillanimous  indifference  and 
criminal  submission  on  the  other.  And  we 
have  seen  that  these  rights  consist,  primarily, 
in  the  free  enjoyment  of  personal  security,  of 
personal  liberty,  and  of  private  property.  So 
long  as  these  remain  inviolate,  the  subject  is 
perfectly  free ;  for  every  species  of  compulsive 
tyranny  and  oppression  must  act  in  opposition 
to  one  or  other  of  these  rights,  having  no 
other  object  upon  which  it  can  possibly  be 
employed.  To  preserve  these  from  violation, 
it  is  necessary  that  the  constitution  of  parlia- 
ment be  supported  in  its  full  vigour;  and 
limits,  certainly  known,  be  set  to  the  royal 
prerogative.  And,  lastly,  to  vindicate  these 
rights,  when  actually  violated  or  attacked,  the 
subjects  of  England  are  entitled,  in  the  first 
place,  to  the  regular  administration  and  free 
course  of  justice  in  the  courts  of  law;  next,  to 
the  right  of  petitioning  the  king  and  parliament 
for  redress  of  grievances;  and  lastly,  to  the 
right  of  having  and  using  arms  for  self- 
preservation  and  defence.  And  all  these  rights 
and  liberties  it  is  our  birthright  to  enjoy  entire ; 
unless  where  the  laws  of  our  country  have  laid 
them  under  necessary  restraints:  restraints 
in  themselves  so  gentle  and  moderate,  as  will 
appear,  upon  farther  inquiry,  that  no  man  of 


234  HOW  TO    STUDY   LAW. 

sense  or  probity  would  wish  to  see  them  slack- 
ened. For  all  ol  us  have  it  in  our  choice  to  do 
everything  that  a  good  man  v^rould  desire  to 
do;  and  are  restrained  from  nothing  but  what 
would  be  pernicious  either  to  ourselves  or  our 
fellow  citizens  So  that  this  review  *of  our 
situation  may  fully  justify  the  observation  of  a 
learned    French    author,    who   indeed 

^"^  generally  both  thought  and  wrote  in 
the  spirit  of  genuine  freedom,  (.?)  and  who 
hath  not  scrupled  to  profess,  even  in  the  very 
bosom  of  his  native  country,  that  the  English 
is  the  only  nation  in  the  world  where  political 
or  civil  liberty  is  the  direct  end  of  its  constitu- 
tion. Recommending,  therefore,  to  the  stu- 
dents in  our  laws  a  farther  and  more  accurate 
search  into  this  extensive  and  important  title, 
I  shall  close  my  remarks  upon  it  with  the 
expiring  wish  of  the  famous  Father  Paul  to 
his  country,  "Esto  perpetua!" 

(z)  Montesq.  Spir.-  of  Laws  xi,  5. 


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